Orissa High Court
Debendranath Kar (Since Deceased) And ... vs State Of Orissa And Ors. on 6 November, 2007
Equivalent citations: 105(2008)CLT377, 2008(I)OLR87
Author: Sanju Panda
Bench: I.M. Quddusi, Sanju Panda
JUDGMENT Sanju Panda, J.
1. Debendranath Kar had filed this writ petition alleging that though he is entitled for a plot, the opposite parties are not allotting the same in his favour in exchange of his plot acquired under the Land Acquisition Act. During the pendency of the writ petition, Debendranath died and thereafter his legal representative have been substituted in his place.
2. The case of the petitioner-late Debendranath Kar, in brief, is that the petitioner had purchased a land measuring an area of Ac. 0.60 dec. (11/2 gunths) out of plot No. 676 under Khata No. 102 in Mouza Gandarpur. The said plot was acquired in a Land Acquisition Proceeding in the year 1974 for Sikharpur Housing Scheme. The petitioner immediately made an application to exclude his plot from acquisition in order to enable him to retain the same to construct his small house according to the specifications of the Town Planning Authority under Section 79 of the Orissa Town Planning & Improvement Trust Act, 1956 (in short "the Act, 1956"). The said application was made by the petitioner in the context of mandatory provisions of Section 78 read with Sections 37 and 34 (2)(iii) of the Act and he had also given an undertaking that he would abide by the terms and conditions to be fixed by the Town Planning Authority.
3. The Orissa Development Authorities Act, 1982 (in short "the Act, 1982") came into force with effect from August, 1982 repealing the Act, 1956 with a saving clause. On 13.02.1984, the Deputy Secretary to Government, Housing & Urban Department, Orissa, wrote a letter to the Vice-Chairman of the Cuttack Development Authority (in short, "C.D.A.") for allotment of a land to the petitioner under Sikharpur Housing Accommodation Scheme, Cuttack, considering the petitioner's representation and the petitioner's application for alternative plot in exchange of his plot acquired by the authority. Again, the Deputy Secretary issued a reminder on 19.5.1985. Thereafter, the petitioner made several representations to the authorities to consider his case and in reply thereto, the C.D.A. intimated that if the petitioner was interested to take any land at Bidanasi area, then they would consider the same for allotment of land. Subsequently, on 12.3.1996 the C.D.A. allotted one 'F' category plot, i.e. Plot No. F-156, measuring an area of 16' x 32" (512 sq. ft.) to the petitioner fixing its price at Rs. 18,944/-. Hence, the petitioner asserted that he was entitled to a plot in exchange of his purchased plot under Sikharpur Housing Scheme as per the rate in the year 1975. In the meantime, the same has been repealed and the C.D.A. is now the competent authority to deal with the matter. Thus, the C.D.A. under Section 128 of the Orissa Development Authorities Act, 1982 has a statutory obligation to offer a suitable plot to the petitioner.
4. After receipt of the allotment order on 3.4.1996, petitioner applied to the Secretary, C.D.A. with a prayer to provide him a 'C category plot at Bidanasi in Sector-7 in lieu of his acquired land measuring 60 dec. and the area of 'C category plot was 59 dec. Further, 'C category plots were available at that point of time. Thus, the petitioner was entitled to a 'C category plot instead of 'F' category plot. The Secretary, C.D.A. rejected the claim of the petitioner for 'C category plot and issued a letter to give his option for 'F' category plot. Since the authority did not allot a suitable plot to the petitioner, this writ petition has been filed.
5. Opposite party No. 2 has filed its counter affidavit. It has been specifically stated that the application of the petitioner was duly considered by the Government and it was observed that with reference to the petitioner's representation dated 4.5.1974 his land measuring an area of Ac. 0.60 dec. fell in the middle part of Sikharpur Housing Scheme area. As such, it was not possible to exclude his plot from the above Scheme. He could at best be allotted with a plot in the Scheme area on payment of the prescribed cost if he had applied for the same, but the petitioner had not applied for any plot under the Sikharpur Housing Scheme. The authorities allotted a huge number of plots to various intending allottees who had applied under the Scheme. As such, the petitioner's case has no merit for consideration and he is not consistent in his approach for allotment of plot. The petitioner has always insisted an allotment of a 'C category plot on payment of Rs. 1750/- which was not possible as the C.D.A. had asked him to exercise his option but he did not turn up. The C.D.A. with a sympathetic approach have allotted an 'F' category plot at the rate of Rs. 18,944/-. The petitioner did not respond to the same and filed this writ petition after lapse of 23 years from the date of acquisition. Hence, his case deserves no merit. Further, as the petitioner has received compensation without objection, he cannot claim for an alternative land. The further contention of the opposite parties is that the petitioner's claim for allotment of an alternative plot in exchange his plot does not arise as the Scheme for alternative site was floated during 1975 and the petitioner failed to avail the benefit thereof. As the said Scheme is not available after 23 years, the petitioner is not entitled to any relief as claimed by him in the writ petition. They have also specifically stated that in the meantime the rate of land has been escalated due to inflation of price. Thus, the claim of the petitioner to allot a land at the rate of the year of acquisition is not sustainable in law and the writ petition is liable to be dismissed.
6. Considering the aforesaid rival contentions of the parties, we are to examine as to whether the petitioner is entitled to get any relief under the provisions of the Act, 1956 and the Act, 1982. The relevant provisions of the Orissa Town Planning & Improvement Trust Act, 1956 read as follows:
78. Power to dispose of land - (1) The Planning authority may retain, or may lease, sell, exchange, let on hire, or otherwise dispose of, any land vested in or acquired by it under this Act.
(2) Whenever the Planning authority decides to lease or sell any land acquired by it under this Act from any person, it -
(a) shall give notice by advertisement in the local newspaper, and
(b) shall offer to the said person, or his heirs, executors or administrators, a prior right to take on lease or to purchase such land, at a rate to be fixed by the Planning authority if the said authority considers that such an offer can be made, without detriment to the carrying out of the purpose of this Act.
(3) xxx xxx xxx (Emphasis supplied) As against the above provisions of Section 78 of the Act, 1956, the provisions of its Section 37 and 34 (2)(iii) of the Act read as follows:
37. Re-housing scheme - The planning authority may frame schemes for development of sites and for construction, maintenance and management of such and so many dwellings and shops as it may consider necessary for persons who -
(a) are displaced by the execution of any improvement schemes sanctioned under this Act; or
(b) are likely to be displaced by the execution of any improvement scheme which it is intended to frame, or submit to the State Government for sanction, under this Act.
34. Improvement scheme -
(1) xxx xxx xxx (2) An improvement scheme may provide for all or any of the following matters, namely:
(i) & (ii)xxx xxx xxx
(iii) the re-distribution of sites belonging to owners of property comprised in the scheme;
(iv) to (xvi) xxx xxx xxx.
7. The aim and object of the above sections is to provide an alternative accommodation to the persons whose land has been acquired in land acquisition proceedings, because those persons have purchased small piece of land, i.e. one gunth to three gunths, with a hope that they would built their houses and reside therein and that hope has been shattered by the acquisition proceedings. The State has an obligation to provide housing accommodation to the inhabitants and with this object, the State ventured to set up a new city at Bidanasi and acquired vast tract of lands some of which are not disputed. The State also owes an obligation to see the settlement of the poor persons who have purchased some small pieces of lands for having their own homes, in this context, the alternative prayer of the present petitioner is that a land similar to his own land may be given to him by Cuttack Development Authority and the same needs to be considered.
8. In the case of State of U.P. v. Smt. Pista Devi , the Apex Court, while considering a case of similar nature wherein the land had been acquired for the purpose of setting up a housing complex by the Meerut Development Authority, observed that the principle contained in the Delhi Development Act should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas and the Meerut Development Authority, for whose benefit the land in question has been acquired, will as far as practicable provide a house site or shop site or reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban areas in question. This observation made by their Lordships in the said case equally applies to the facts and circumstances of the present case. In the instant case, the Government has requested the C.D.A. to provide a suitable plot to the petitioner way back in the year 1984 and to fulfil that request of the Government, the C.D.A. has already allotted an 'F' type plot to the petitioner which is not similar to his plot which has been acquired by the C.D.A.
9. It is an admitted case that the petitioner's land had been acquired in the year 1974 and immediately thereafter petitioner applied for giving him a suitable land in lieu of the land taken by the authority under the Land Acquisition Proceeding to which he was entitled under Sub-section 2 (b) of Section 78 of the Act, 1956 as the said Act was prevailing at the relevant time. That apart, the Government had also requested the C.D.A. to give an alternative plot to the petitioner, but the C.D.A. sat over the matter and illegally allotted an 'F' category plot. The said action of the C.D.A. is neither in consonance with law nor is it expected from a public authority. Hence, this Court holds that the petitioner is entitled to a 'C category plot as the land acquired is same in size of 'C' category plot.
10. For the laches and the delay caused by the C.D.A., the petitioner cannot be liable to pay the present market value of the land. For equity and for the ends of justice and in the facts and circumstances of the case, we are of the view that the petitioner is liable to pay the market value of the land prevailing on 12.3.1996 when the C.D.A. offered him an 'F' category plot.
11. In the conclusion, the writ petition is allowed. It is directed that C.D.A. shall allot a 'C category plot to the petitioner and the petitioner shall pay the rate prevalent on 12.3.1996. The entire exercise shall be completed by opposite party No. 2 within a period of six months from today and the petitioner within one month thereafter will pay the price of the said plot as directed above.
There shall be no order as to costs.
I.M. Quddusi, J.
12. I agree.