Orissa High Court
Smt. Sureswari Devi vs State Of Odisha And Others ::: Opposite ... on 9 November, 2020
Equivalent citations: AIRONLINE 2020 ORI 126
Author: D.Dash
Bench: S.K.Mishra, D.Dash
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.15349 of 2012
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In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Smt. Sureswari Devi ::: Petitioner
Versus
State of Odisha and Others ::: Opposite Parties
For Petitioner ::: M/s. S.K.Joshi, J.K.Panda and
B.P. Acharya, Advocates,
For Opp. Parties ::: Additional Government Advocate
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE S.K.MISHRA
AND
THE HONOURABLE SHRI JUSTICE D.DASH
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Date of judgment : 09.11.2020
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D.Dash, J. The petitioner by filing this writ application has prayed for a direction to
the opposite parties (State of Odisha and its functionaries) to take steps for
initiation of proceeding afresh under the Land Acquisition Act, 1894
(hereinafter, called „the LA Act‟) to acquire the land measuring Ac.2.25
decimals as described in the schedule under Annexure-1 to this application and
pay just and adequate compensation as assessed as per the present market
rate and in accordance with law; in the alternative to deliver of possession of
said land.
2. The factual matrix of the case, in hand, is that one Soubhagya Manjari,
the wife of late Anup Singh was the original owner having the right, title,
interest and possession of the land in question. She has died leaving behind
the petitioner and other sons and daughters as her legal heirs and successors
who have succeeded to all the properties of said Soubhagya Manjari.
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It is stated that in the year 1974, the State having constructed the
building over the land in question for use as District Agriculture Office, staff
quarters, godown etc. and have been so occupying the land and buildings
standing over it in running the office and other associated activities. It is further
stated that although the State is in occupation of the land of the petitioner by
putting up constructions over there and using those for its purpose, no such
step has been taken either for payment of adequate compensation as payable
for the same nor it is being vacated for being possessed by the petitioner and
others as its owner exercising all such rights.
It is the case of the petitioner that Govt. in the Department of Revenue
by notification dated 15.10.1976 had intended to acquire Ac.2.25 decimals of
land under khata no.432, plot no.412 in Mouza-Khariar for public purpose for
construction of staff quarters, garages, godown and passage to the Agriculture
Office, Khariar. The notification was one under section 4(1) of the L.A. Act.
Land Acquisition Case No.228 of 1976 had been registered for the purpose.
The matter however did not proceed further. Be that as it may, the State again
made the notification on 09.09.1986 which was published in the official gazette
on 30.10.1986 as at Annexure-2 whereupon Land Acquisition Case no. 29 of
1986 came to be registered before the Land Acquisition Officer, Khariar. Field
enquiry had been conducted, demarcation of the land had also been made.
The owner, Soubhagya Manjari Devi had been served with a notice dated
7.3.1987 (Annexre-3) to that effect. In response to the same, Soubhagya
Manjari had asked the Authority to calculate the compensation taking the
market price of the land @ Rs.3000/- per decimals. It was stated that
assessment of the market price of the land as it was then prevailing was not
made keeping in view the fact that the land in question is situated within the
area of Khariar Notified Area Council and bounded P.W.D. Road from Khariar
to Nuapada and Bhawanipatna with other offices of the Govt. situating nearby.
It is further stated that although more than three and half decades have passed
in the meantime, the land owner and on her death, the petitioner and other
legal heirs have not been paid with the compensation. Thus it is said that the
land in question is in unauthorized occupation of the State through its
functionaries and its continuance as such is wholly illegal. The petitioner
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asserts the present market value at Rs.1.00 lakh per decimal. In the above
premises, the petitioner claims that she and other legal heirs and successors of
Late Soubhagya Manjari either be paid with the compensation for the said land
as per the assessment in consonance with the present market price and in
accordance with the law as now prevails and holds the field or the possession
of the land in question be restored to them.
The opposite party no. 5, the District Agriculture Officer, Khariar has filed
the counter on behalf of the opposite party nos. 2 and 5.
The settled position of law has been stated at paragraph-4 that once the
land is vested in the State, free from all encumbrances, it cannot be divested
and proceedings under the Act would not lapse, even if an award is not made
within the statutory period. The position of law that once the land is acquired
and vested free for all encumbrances, it is not the concern of the land owner
whether the land is being used for the purpose for which it was acquired or for
any other purpose. He becomes persona non-grata, once the land vests in the
State and has a right to only receive compensation for the same, unless the
acquisition proceeding is itself challenged. It is stated that the State has no
requisite power to reconvey the land to the person-interested nor can such
person claim any right of restitution on any ground whatsoever unless there is
some statutory amendment on the score.
Banking upon the above, it is said that the prayer of the petitioner for
delivery of possession of the land is not tenable. It is next stated that the
payment of compensation for the land in question by the State as per the
assessment in terms of the present market price of the land is not acceptable
as the land in question had been voluntarily spared by the predecessor-in-
interest of the petitioner.
At paragraph-5 of the counter, it has been admitted that the land
measuring Ac.1.72 decimals is in occupation of the District Agriculture Officer
having godown, garage, office of Asst. Agriculture Officer etc. It is stated that
construction over the land had taken place in the year 1976. The husband of
Soubhagya Manjari Devi was the member of State Legislative Assembly and
also the Cabinet Minister. He being a public spirited and forward looking person
was taking initiative for all around development of Khariar. He wanted the
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Agriculture Office to be located at Kharirar instead of Nuapada which is the
Sub-Divisional headquarter. So in order to ensure that said office functions
there at Khariar, he and his wife Soubhagya Devi volunteered to spare the
land in question for the purpose of necessary construction and user by the
State and its functionaries and handed over the possession of the same
whereafter constructions have been made. It is stated that such constructions
have been made to the knowledge of the erstwhile owner and all her family
members. After constructions, those have been used as such. It is stated that
they had relinquished their right, title and interest over the said land whereafter
the constructions have been made and therefore from that time onwards, no
such objection was raised either by the erstwhile owner or by her legal heirs
and successors nor they have advanced any claim for compensation or for
restoration of possession of the land in question.
The publication of the notifications under the LA Act, as have been
pleaded in paras-3 to 5 of the writ application, have not been denied. It is
stated that the land acquisition proceeding was initiated by notification and
Land Acquisition Case no. 228 of 1976 had been registered and the
compensation for the land under occupation of the State measuring Ac.1.72
decimals was assessed at Rs.20,330/- which was not objected to by the land
owner and the amount has been accordingly deposited by Bank draft dated
21.11.87.
3. The counter filed by the Land Acquisition Officer (opposite party no.3)
and Asst. Collector (opposite party no.4) run in the same vein as that of the
counter filled by the opposite party nos. 2 and 5.
4. Admittedly, the land measuring Ac.1.72 decimals owned by Soubhagya
Manjari is in occupation of the State since the year 1976. In view of the
averments taken in the counters that the land had been voluntarily spared and
the rights over the land had been relinquished for the purpose of construction
of the building by the State for the Agriculture Office, godown etc., this Court
had directed the opposite parties to file affidavit explaining that aspect in detail.
The said affidavit of the opposite party no. 5 being relevant is placed
hereunder:-
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"4. That it is admitted fact that the land measuring 1.72 Acre is in
possession of the District Agriculture Officer, Khariar. There is Godown,
Garage Office of the Assistant Agriculture Officer, Khariar and Agriculture.
Sale Centre Godown on the said land. The District Agriculture Officer,
Khariar was constructed during the year 1964 in the Government Plot, a
piece of land kisam Bagicha measuring an area of Ac.2.25 dec. of mouza-
Khariar of Saubhagya Manjari Devi left baron and unused adjacent to
District Agriculture Office, Khariar. During the field visit of Addl. District
Magisgtrate, Kalahandi (when Khariar was under Kalahandi district) to
D.A.O., Khariar on 09.08.1976 was requested for acquisition of the said
piece of land. Thereafter, DAO, Khariar in his letter No.4214 dated
16.8.1976 made a requisition to Land Acquisition Officer, Kalahandi for
acquisition of land measuring an area of Ac.2.60 dec. out of which Ac.0.35
dec. was Anabadi. The land was taken into possession and used from
16.06.1977 with the oral consent of the owner. The L.A. proceeding was
initiated under emergency clause for an area of Ac.2.25 dec. as this is an
advance possession case for construction of office, garage, sale centre
etc. Later on an area of Ac.0.53 dec. from Plot No. 412 was withdrawn
from land acquisition with the direction of the Commissioner-cum-
Secretary to Government, Revenue & Excise Department vide letter No.
3233/R dated 24.04.1979. Then a fresh proposal for an area of Ac.1.72
dec. was initiated in the land acquisition office, Kalahandi. The buildings
have been constructed at various points of time starting from 1976. It is
significant to note that the husband of recorded tenant Smt. Sobhagya
Manjari Devi was a MLA, Khariar for a long period of time after abolition of
Jamindari which was his estate Ms.Anup Singh Deo. Husband of recorded
tenant was also Cabinet Minister for several terms. He was Ex-Jamindar
of Khariar and was quite a forward looking, man taking initiatives for all
round development of Khariar. In such a public spirit he actually wanted
that the District Agriculture Officer be located at Khariar instead of
Nuapada which was a head quarter of a sub-division to see that the office
is located at Khariar. The recorded tenant volunteered to spare the case
of land and handed over possession of the same without the land being
acquired through R.A. Proceedings. As a result the aforesaid construction
have been made from time to time within the knowledge and notice of the
recorded tenant and his family members who have volunteered to give the
land for a public purpose and thus they have acquiesced to the said
construction. Since, they themselves took an active part in sparing the
land. The recorded tenants have never raised any claims of compensation
on surrender of vacant position.
5. That it is humbly submitted that the gift/donation was not
available in the office of the deponent for which the Land Acquisition
Proceedings was initiated vide L.A. Case No. 228 of 1976 and L.A. No.
29 of 1986 during that time.
6. That it is further humbly submitted that for extension of
infrastructure facilities like staff quarters, Go-down etc of District
Agriculture Officer, Khariar an acre of 2.25 of plot No. 412 Khata No. 431
was selected in the year 1976 by the site selection committee comprising
of District Level Officers viz. Sub-Divisional Officer, Nuapada, Sub-
Division, Medical Officer, Khariar PHC, Tahasildar, Khariar, District
Agriculture Officer, Khariar etc, which was under the name of Late
Soubhagya Manjari Devi, wife of Late Anup Singh Deo, Maharaja-cum-
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MLA, Khariar. With the consent of the land owner Late Soubhagya
Manjari Devi and her husband Late Anup Singh Deo, Maharaja-cum-
MLA, Khariar a pucca boundary wall with iron gate was constructed in
Ac.2.25 decimal over plot No. 412 and Khata No. 431 by the Executive
Engineer, PWD, Kantabanji. Land Acquisition process were initiated by
the District Agriculture Officer, Khariar through the Land Acquisition
Officer, Kalahandi (undivided District). The draft publication U/s. (6) of the
Land Acquisition Act was issued by the Collector, Kalahandi on
14.09.1976 and 4(1) Notification No. L-228/75 Kalahandi 80/85/R. Later
on in the year 1986, the Government of Odisha in Revenue Department
relinquished Ac.0.53 decimal land, the private party and intact Ac.1.72
decimal of land for the use of District Agriculture Officer, Khariar seeking
a fresh proposal of Land Acquisition proceedings for an area of Ac.1.72
decimal a fresh proposal with all the relevant documents for Land
Acquisition Process were furnished for the Land Acquisition Officer,
Kalahandi by the District Agriculture Officer, Khariar in the year 1986. An
amount of Rs.300/- and Rs.20,330/- were deposited in the Land
Acquisition Office, Bhawanipatna vide Bank Draft No. TT/AE-88706,
dated 31.03.1987 and Bank Draft No.OL/A.27-067310, dated 21.11.1987
respectively by the deponent. The compensation money has not been
paid to the land looser (land owner) by the Land Acquisition Officer,
Kalahandi as the Government in Revenue Department, Odisha has not
issued orders under section 7 of the L.A. Act to him for acquisition of land
measuring an area of Ac.1.72 decimal as per the Land Acquisition
process of L.A. Case No. 29/86 which was remained uncompleted since
then."
5. The averments taken in the affidavit of opposite party nos.3 and 4, which
are relevant for the purpose are as follows:-
"3. That the L.A. proposal for construction of office, staff quarter and go-
down etc. in Mouza-Khariar bearing Khata No. 431, plot No. 412 for an
area of Ac.2.25 decimal of land had submitted by the District Agriculture
Officer, Khariar to the Land Acquisition Officer, Kalahandi in the year
1976. The Land Acquisition Officer, Kalahandi has initiated a L.A. Case
bearing No.46/1976. The Govt. in Revenue Department, Odisha issued
Notification U/s.4(1) of the L.A. Act vide No.80135, dtd.15.10.1976.
4. The Land Acquisition Officer, Kalahandi has submitted estimate
of Rs.2,485.61 to Government in Agriculture and Cooperation
Department for sanction.
5. That the Declaration U/s.6(1) of the L.A. Act was issued vide
No.35355 dtd. 30.05.1978.
6. That the Government in Revenue Department intimated to
Agriculture and Cooperation Department about the invalidation of the L.A.
Case No. 46/1976 and requested to the District Agriculture Officer,
Khariar to file fresh L.A. proposal, vide No. 73711, dtd. 06.11.1980.
Thereafter another L.A. proposal was submitted by the District Agriculture
Officer, Khariar and L.A. Case No.29/1986 was initiated for an area of
Ac.2.25 by the Land Acquisition Officer, Kalahandi.
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Accordingly, the Additional District Magistrate, Kalahandi
intimated the District Agriculture Officer, Khariar to file requisition afresh
for Ac.1.72 decimal of land.
In the meantime, one objection was received from one Ashok
Kumar Khandelwal by the Collector & District Magistrate, Kalahandi on
01.03.1982 opposing the acquisition of his land of an extent of Ac.0.53,
and stating that an area of Ac.0.75 decimal of land was purchased by him
vide Registered Sale Deed No.1451. Book No.22, dated 10.10.1974 for
the purpose of establishing a power loom, out of which Ac.0.53 decimal
of land had been included in the proposal for acquisition.
7. That after initiation of the above L.A. case, an area of Ac.0.53
decimal of land was withdrawn as per letter No. 4860, dtd. 26.09.1987 of
the Additional Director, Agriculture addressed to the District Agriculture
Officer, Khariar with a copy to the Land Acquisition Officer, Kalahandi.
The District Agriculture Officer, Khariar also furnished certificate in Form
No.17-A to the Land Acquisition Officer, Kalahandi regarding withdrawal
of area of Ac.0.53 decimal of land. Accordingly, Notification was issued
for acquisition of land to the extent of Ac.1.72 decimal.
8. That the Land Acquisition Officer, Kalahandi prepared an
estimate of Rs.20,329.58 paisa for an area of Ac.1.72 decimal and was
sent to the Agriculture and Cooperation Department for sanction on
dtd.05.10.1987.
9. The Government in Agriculture and Cooperation Department
sanctioned the estimated amount of Rs.20,330.00 vide No.34750, dtd.
28.10.1987 and the same amount has been deposited with the Land
Acquisition Officer, Kalahandi vide Bank Draft No.OL/A27-067310,
dtd.21.11.1987. Order-7 of L.A. Act has not issued by the Govt. and
award had not been made to the recorded tenant."
6. The position of law is no more res integra that even after the right to
property ceased to be a fundamental right, taking possession of or acquiring
the property of a citizen most certainly tantamounts to deprivation and such
deprivation can take place only in accordance with the law, as the said word
has specifically been used in Article 300-A of the Constitution. Such deprivation
can be only by resorting to a procedure prescribed by a statute. The same
cannot be done by way of executive fiat or order or administration caprice.
7. In Jilubhai Nanbhai Khachar, etc. v. State of Gujarat & Anr., AIR 1995
SC 142, it has been held as follows:-
"In other words, Article 300-A only limits the power of the State
that no person shall be deprived of his property save by authority
of law. There is no deprivation without due sanction of law.
Deprivation by any other mode is not acquisition or taking
possession under Article 300-A. In other words, if there is no law,
there is no deprivation."
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Reliance is placed on the judgment In Hindustan Petroleum
Corporation Ltd. v. Darius Shapur Chenai, the Apex Court held that:-
"6...... Having regard to the provisions contained in Article
300-A of the Constitution, the State in exercise of its power
of "eminent domain" may interfere with the right of property
of a person by acquiring the same but the same must be for
a public purpose and reasonable compensation therefor
must be paid."
In N. Padmamma v. S. Ramakrishna Reddy, the Court held that:-
"21. If the right of property is a human right as also a
constitutional right, the same cannot be taken away except in
accordance with law. Article 300-A of the Constitution
protects such right. The provisions of the Act seeking to
divest such right, keeping in view of the provisions of Article
300-A of the Constitution of India, must be strictly construed."
The right to property is now considered to be, not only a constitutional or
a statutory right, but also a human right. Though, it is not a basic feature of the
Constitution or a fundamental right. Human rights are considered to be in realm
of individual rights, such as the right to health, the right to livelihood, the right to
shelter and employment etc. Now however, human rights are gaining an even
greater multi faceted dimension. The right to property is considered, very much
to be a part of such new dimension.
8. The factual setting of the case that the land measuring Ac.1.72 decimals
appertaining to khata no.431 under plot no.412 of mouza-Khariar which
belonged for Soubhagya Manjari Devi is in occupation of the State where
District Agriculture Office, godown, garage etc. stand. Being aggrieved by the
rule of Law, the State cannot arrogate itself to a status beyond the one that is
provided by the constitution and the laws. The State cannot deprive its citizen
of his/her right over the property without being in adherence to the law. Here,
the State having conceded the right, title and interest of Soubhagya Manjari
Devi in so far as the land in question is concerned, had placed that she had
voluntarily spared the land for the development of the area by construction of
buildings by the State for Agriculture Office, godown, garage etc and had
relinquished all her rights over the same in favour of the State. But neither a
scrap of paper nor any such document in support of that stand has been placed
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before this Court. Moreover, repeated notifications under the LA Act and
initiation of land acquisition cases for acquisition of the land as also issuance of
notice to the land owner in that connection falsifies that stand of voluntary
sparing and relinquishment.
The above being one part of the coin, the other part which is equally
important that emerges is the conduct of the erstwhile owner and her legal
heirs and successors for being taken note of for its due consideration in the
matter. The case in hand does not appear to be the one that without the
knowledge Soubhagya Manjari Devi, the owner, the property has been
overnight taken over. Despite inaction or non-progress of the matter relating to
payment of compensation to the erstwhile owner or her legal heirs and
successors, as the case may have been, it appears that they have maintained
sphinx like silence at least since March, 1987 after responding to the only
notice given in that regard till January, 2010 when the petitioner is seem to
have woken up from deep slumber after more than two decades in ventilating
the grievance. During this long period, no such step has been taken in
asserting the right either as to compensation or for restoration of possession
and then again after about two years since that notice by the petitioner, this writ
application has come to be filed without any explanation on said score.
It is pertinent to mention here that the erstwhile owner in her response to
notice dated 5.3.1987 had then claimed for compensation for the land @
Rs.3000/- per decimal placing reliance on three such sale transactions of the
nearby land which had been made in the year 1984 under Annexure-3, which is
not denied by the opposite parties. She, however, thereafter did not raise any
grievance at any time during her lifetime; this petitioner for and on behalf of all
the legal heirs of Soubhagya Manjari has advanced the claim only on
14.01.2010.
9. In the above premises and in the facts and circumstances of the present
case so as to redress the grievance of the petitioner and other legal heirs and
successors of Soubhagya Manajari Devi once for all; We are of the considered
view that ends of justice would be met by directing the opposite party no.1 to
pay compensation for the land measuring Ac.1.72 decimals under khata no.431
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and plot no.412 of mouza Khariar by assessing the same as then claimed by
Late Soubhagya Manjari Devi @ Rs.3000/- per decimal together with all
statutory benefits including solatium and interest etc. as available at that point
of time, as per prevailing law within a period of three months hence treating it
as a case of deemed acquisition.
10. The writ application is accordingly disposed of.
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D.Dash, J.
I agree.
........................... S.K.Mishra, J.
Orissa High Court: Cuttack Dated the 9th Nov,2020/Nayak,AR-cum-Sr.Secy