Orissa High Court
Gyanindra Kumar Naik & Others vs State Of Orissa & Others on 23 April, 2014
Author: A.K.Rath
Bench: A.K.Goel, A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.16815 of 2012
In the matter of an application under Article 226 of the Constitution of India.
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Gyanindra Kumar Naik & others .... Petitioners
Versus
State of Orissa & others .... Opp. Parties
For petitioners ... Mr. N.C.Panigrahi, Sr. Advocate
For opp. parties ... Mr.R.K.Mohapatra, Govt. Advocate and
Mr.P.K.Muduli, Addl. Standing Counsel
(For O.Ps. 1 to 7)
Mr.R.K.Rath, Sr. Advocate and
Mr.B.S.Tripathy, Advocate
(For O.P..8)
PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. A.K.GOEL
AND
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 02.04.2014 : Date of judgment: 23.04.2014
Dr. A.K.Rath, J In this application under Article 226 of the
Constitution of India, the petitioners, who are land oustees, challenge
the notification published under Section 4(1) and declaration under
Section 6(1) of the Land Acquisition Act, 1894 (hereinafter referred to
as "the Act") respectively for acquisition of Ac.1188.41 of land of village
Darlipali under Lefripada Tahasil in the district of Sundargarh for
construction of Super Thermal Power Project of National Thermal
Power Corporation (hereinafter referred to as "the NTPC"), as illegal,
non est and void.
2
2. Bereft of unnecessary details, the short facts of the case of
the petitioners are that the Government of Orissa in its Revenue &
Disaster Management Department issued a notification under Section
4(1) of the Act on 10.3.2010 for acquisition of Ac.1188.41 of land for
construction of Super Thermal Power Project of NTPC. Petitioner No.1
through his lawyer collected information under the Right to
Information Act, 2005 (hereinafter referred to as "the RTI Act")
regarding notification published under Section 4(1) of the Act in the
Orissa Gazette. As per letter No.16348 dated 9.4.2012, the Joint
Secretary to Government informed that no notification bearing
No.LA(C) 189/2010 (Sundargarh) 10675/RDM dtd.10.3.2010 has been
published in the Orissa Gazette. It is further stated that as per
Constitution Order 109 - Scheduled Areas (States of Bihar, Gujarat,
Madhya Pradesh and Orissa) Order, 1977 (hereinafter referred to as
"the Scheduled Order") dtd. 31.12.1977, Sundargarh District in the
State of Orissa comes under scheduled areas. Village Darlipali and
Raidihi under Lefripada Tahasil is within the Sundargarh district. The
Sarpanch, Darlipali Gram Panchayat issued notice on 10.11.2010 to
all voters of Darlipali Gram Panchayat for holding a general Gram
Sabha on 24.11.2010 at 11 A.M regarding land acquisition for NTPC
Thermal Power Project. On 24.11.2010, the Gram Sabha was
adjourned due to want of quorum. On 26.11.2010, another notice was
issued by the Sarpanch, Darlipali to hold Gram Sabha on 28.11.2010.
It is stated that in the notice the date is over written as 25.11.2010,
whereas the Sarpanch signed the notice on 26.11.2010. Since the
resolution dated 28.11.2010 of the Gram Sabha was made without
proper notice, the same is void and non est. It is further stated that by
letter no.610 dated 26.5.2011, the Public Information Officer-cum-
District Panchayat Officer, Sundargarh (hereinafter referred to as "the
PIO") informed the petitioner no.1 that the adjourned Gram Sabha held
on 28.11.2010 is illegal. But then, by another letter no.639 dated
31.5.2011, the PIO intimated that there is some clerical error in the 3 information supplied to the petitioner no.1 in his earlier letter and sent the revised information along with the said letter. As per letter no.1219 dated 10.10.2011, the PIO submitted inquiry report dated 7.10.2011 to the Collector, Sundargarh. In the said report, he categorically stated that the Gram Sabha held on 28.11.2010 cannot be treated as a Gram Sabha under the Orissa Gram Panchayats Act and Rules. Further case of the petitioners is that as per Section 4(1) of the Act, the Government have not issued the advertisement No.VII-77 dtd. 10.3.2010 in Utkal Mail published on 8.4.2011 from Rourkela. The advertisement is a fake one. No notification under Section 4(1) of the Act was published in the newspaper. When the villagers objected to the public hearing before issuance of notification under Section 4(1) of the Act, the NTPC officials distributed the fake Utkal Mail Oriya Newspaper on 8.4.2011 with fake notification. Thereafter, they filed WP(C) No.23841 of 2011 before this Court. In the said case, notice had been issued to the opposite parties. But then, the petitioners along with others submitted objection under Section 5A(1) of the Act before the Collector, Sundargarh. The Collector did not consider the point raised by them. Furthermore, declaration under Section 6(1) of the Act was issued on 29.2.2012, i.e., after lapse of one year. In view of the same, the declaration under Section 6(1) of the Act is also void and non est.
3. Pursuant to issuance of notice, a counter affidavit has been filed by opposite parties 4 and 7. The case of the opposite parties is that NTPC is a Government of India enterprise. It had submitted proposal for acquisition of Ac.1188.41 of land in village Darlipali of Lefripada Tahasil in Sundargarh district for establishment of Super Thermal Power Project. The preliminary notification under Section 4(1) of the Act was issued by the Government in its Revenue & Disaster Management Department on 10.3.2011 vide no.10775 for acquisition of Ac.1188.41 of land. Due to typographical error, the date had been typed as "10.3.2010" instead of "10.3.2011". But subsequently, the date had been corrected and the correct notification had been issued.
4Preliminary notification under Section 4(1) of the Act was published in the Orissa Gazette (Extraordinary) vide Gazette No.603 dated 24.3.2011. The same was also published in two Oriya dailies, i.e, "the Utkal Mail" and "Prajatantra" on 8.4.2011 and 7.4.2011 respectively. It is further stated that Sundergarh District comes under the scheduled areas. Due procedure has been followed to consult the Gram Sabha as per the provisions contained in the Panchayats (Extension to the Scheduled Areas) Act, 1996 (hereinafter referred to as "the PESA Act"). The actual planning and implementation on rehabilitation and resettlement matter had been done as per the provisions contained in Orissa Resettlement and Rehabilitation Policy - 2006 (hereinafter referred to as "the ORRP - 2006"). As per the provisions contained in the PESA Act, the Sarpanch, Darlipali was requested to consult the Gram Sabha for the purpose. Accordingly, the Sarpanch in his letter no.425 dated 12.4.2010 intimated all concerned to attend the meeting. On receipt of a copy of the letter of the Sarpanch, the Collector, Sundargarh authorised the Project Administrator, Integrated Tribal Development Agency, Sundargarh, to remain present in the Gram Sabha. The Member of Parliament (Lok Sabha), Sundargarh, officials of NTPC, other officers, like, Sub-Collector, Sundergarh, Land Acquisition Officer, Sundergarh, Additional Block Development Officer, Lefripada were also present in the Gram Sabha. The Gram Sabha was conducted as per Section 4(c) of the PESA Act. PESA Act does not contain any specific period for convening the same. The provisions contained in the Orissa Gram Panchayats Rules, 1968 (hereinafter referred to as "the OGP Rules") have no application in the instant case. In the Gram Sabha held on 24.4.2010, detailed discussion on acquisition of land, rehabilitation and resettlement of the land oustees including the eleven point demands was made. The resolution was read out and unanimously adopted by the villagers, but at the end of the meeting no written resolution could be passed since few villagers did not put their signatures in the resolution register. Thereafter, the Sarpanch 5 convened another Gram Sabha on 24.11.2010, but the same was adjourned due to want of quorum. Again, the Sarpanch held a Gram Sabha on 28.11.2010. The villagers reiterated the eleven point demands and agreed for land acquisition subject to fulfilment of charter of demands. They never raised any objection for establishment of NTPC Thermal Power Plant in the village. Further case of the opposite parties is that the notification dated 8.4.2011 published in the Utkal Mail is not a fake one. On receipt of memo no.10777 dated 10.3.2011 of the Government of Orissa in the Revenue & Disaster Management Department, the Government in Information and Public Relation Department sent order to the Advertisement Manager, Utkal Mail, Rourkela to publish the notification. Since there was typographical error showing the date of Government notification as "10.3.2010" instead of "10.3.2011", the notification was published in the Utkal Mail mentioning the date as "10.3.2010". Out of total land acquired in villages Darlipali and Raidihi, Khata No.168 of village Darlipali is recorded in the name of Gourisankar Naik, father of petitioner no.1. He had received an amount of Rs.2,69,20,000.00 towards compensation and ex gratia @ Rs.20,00,000.00 per acre on 31.1.2013. All the petitioners, except petitioner no.5, had received their compensation amount without any protest. The payment of compensation to the petitioner no.5 was held up in view of the fact that this Court has passed an order of stay in WP(C) No.348 of 2013. Furthermore, 66.4% compensation of village Darlipali had been disbursed. It is further stated that the Collector, Sundargarh on an enquiry under Section 5A of the Act was convinced that the majority of the villagers are in favour of establishment of the Project. Thereafter, declaration under Section 6(1) of the Act was made.
4. Opposite party no.5 has filed a counter affidavit contending, inter alia, that the date "10.3.2010" appearing in the notification under Section 4(1) of the Act is a typographical mistake. The same is "10.3.2011". The notification was published in the Orissa 6 Gazette No.603 dated 24.3.2011, vide Annexure-F/7. The substance of the notification under Section 4(1) of the Act was published in the locality on 25.3.2011 in the presence of five witnesses, vide Annexure G/7. Thereafter, the notification was published in the local dailies, "Prajatantra" and "the Utkal Mail" on 7.4.2011 and 8.4.2011, vide Annexures H/7 and I/7 respectively. The minor discrepancy does not vitiate the land acquisition process. Furthermore, pursuant to the notification under Section 4(1) of the Act, several objections were received within the statutory period of thirty days. The objectors did not raise any grievance relating to acquisition of their land. They demanded compensation amount, employment, rehabilitation, provision for free medical facilities, establishment of medical college, engineering college and hospital, acquisition of entire lands instead of part thereof. They also demanded free electricity and water. Except petitioner no.1, none of the petitioners had made any objection within the statutory period. Petitioner no.1 had also not raised any grievance relating to acquisition of the land, save and except, to fulfil the demands. It is further stated that on 27.10.2011, petitioner nos.1 and 5 submitted another representation before the Collector, Sundargarh, mentioning eleven point demands wherein they had admitted about the publication of the notification under Section 4(1) of the Act in the Utkal Mail Rourkela edition dated 8.4.2011, vide Annexure I/7 series. The Collector, Sundargarh afforded opportunity of hearing to the objectors. After making thorough enquiry, she submitted a report on 27.10.2011 along with the records of the proceeding stating therein that she was fully convinced that majority of the villagers were in favour of establishment of the project provided their demands were fulfilled. So far as Section 6(1) of the Act is concerned, it is stated that after considering the report of the Collector, the declaration under Section 6(1) of the Act was made by the State Government on 29.2.2012, vide Annexure M/7. The substance of the declaration was published in the concerned locality on 2.3.2012 in the presence of 7 witnesses, vide Annexure N/7. The same was published in the Orissa Gazette, vide Annexure O/7. The declaration was also published in the two local daily newspapers, i.e., "Kalingabharati" and "Prajatantra" on 21.3.2012 and 23.3.2012, vide Annexures P/7 and Q/7, respectively. It is further stated that the award under Section 11 of the Act was passed on 8.12.2012 in respect of 1159 awardees. Thereafter, 1058 number of awardees had received the compensation. The father of petitioner no.1 received the compensation of Rs.2,71,60,000/- on 30.1.2013 without any protest. Petitioner nos.2 to 4 and 6 had also received compensation without protest. Compensation could not be paid to petitioner no.5 in view of pendency of the case before the court. It is further stated that on 18.3.2013 possession of the acquired lands were taken over.
5. A counter affidavit has been filed by the District Panchayat Officer, Sundargarh, opposite party no.6, wherein it is stated that the petitioners were supplied with information under the RTI Act on 26.5.2011, but, subsequently, it was detected that there was some clerical error in supplying the information. The records of the Gram Panchayat were not available in the District Panchayat Office, Sundargarh and, as such, revised information was supplied to the petitioners on 31.5.2011. It is further stated that there is no provision under the PESA Act to give fifteen days notice for convening the Gram Sabha.
6. Opposite party no.8 also filed a counter affidavit taking the similar stand to that of opposite parties 4 and 7. The specific case of opposite party no.8 is that notification under Section 4(1) of the Act had been acted upon. Objections had been filed by the persons interested. Their objections were heard and disposed of. None of the persons affected in the village approached this Court for quashing of the notification under Section 4(1) of the Act. The land acquisition is for public purpose. Furthermore, NTPC Ltd. is a Government Company and its purpose is to set up the power plant of 1600 MW to cater the 8 needs of people of State of Orissa for a greater public interest. It is further stated that the villagers are in favour of acquisition of their land. None of the affected persons have ever raised any objection under Section 5A of the Act. Furthermore, the father of petitioner no.1, in whose name the entire property stands in the ROR, has received the compensation. Petitioner nos.2 to 4 and 6 have also received compensation. So far as petitioner no.5 is concerned, he had not received the compensation because of objection raised by his family members and the matter is pending before the Land Acquisition Collector.
7. In the rejoinder affidavit, the petitioners have controverted the submissions made by opposite parties 4 and 7 in the counter affidavits.
8. We have heard Mr.N.C.Panigrahi, learned Senior Advocate for the petitioners, Mr.R.K.Mohapatra, learned Government Advocate and Mr.P.K.Muduli, learned Addl. Standing Counsel for the State of Orissa, Mr.R.K.Rath, learned Senior Advocate and Mr.B.S.Tripathy, learned Advocate for opposite party no.8.
9. Mr.Panigrahi, learned Senior Advocate, submitted that Section 4(1) of the Act mandates that the notification shall be published in the official gazette and in two daily newspapers circulated in the locality, of which at least one shall be in the regional language. Relying on the decision of the Supreme Court in the case of M/s.V.K.M Kattha Industries Pvt. Ltd. v. State of Haryana and others, AIR 2013 SC 3557, he submitted that the publication of all the notifications as provided under Section 4 of the Act are mandatory and unless all the three publications are complete, the notification must be deemed to be void. He further submitted that as per the information obtained under the RTI Act dated 27.10.2011, the Public Relation Officer has supplied copy of the Utkal Mail edition dated 8.4.2011 published from Rourkela. The same shows that the notification under Section 4(1) of the Act was never published in the said edition. There is only one edition of Utkal 9 Mail published from Rourkela. Furthermore, the copies of paper publications filed by NTPC as well as State Government would show that the publications are partly in English and partly in Oriya. The land schedule has been published in English, which prejudices the illiterate land oustees. The year, date of publication, the words of notification and the number of notification also do not match. He further submitted that the State cannot take a stand that there is a mistake in the date of the notification. Had it been so, the Government would have issued a corrigendum. But then, no such corrigendum has been issued. Referring to Annexure-5, Mr.Panigrahi submitted that the Joint Secretary to Government, Revenue & Disaster Management Department had informed that no notification bearing No.LA(C) 189/2010 (Sundergarh) 10675/RDM dated 10.3.2010 had been published in the Orissa Gazette. But from the copy of the newspaper publication dated 8.4.2011, it is evident that the very same notification with change of year and number had been published. Though the notification was actually intended to be published in the year 2010, yet the same was not gazetted. On the other hand, it was published in the newspaper on 8.4.2011 without being gazetted. The villagers in Rehabilitation and Peripheral Development Advisory Committee (RPDAC) meeting raised the question of non-publication of the notification in the local daily to which the Revenue Divisional Commissioner and the Collector pleaded their ignorance. He further submitted that the declaration under Section 6(1) is illegal in view of the fact that the same was published after one year of the alleged publication of the notification under Section 4(1) of the Act. Placing reliance on the decision of the Privy Council in the case of Nazir Ahmad v. King-Emperor, AIR 1936 PC 253 (2), he submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. Since the notification published under Section 4(1) and declaration under Section 6(1) of the Act are contrary 10 to the spirit of the statute, are liable to be quashed. Mr.Panigrahi further submitted that in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others, (2005) 7 SCC 627, the Supreme Court in paragraph-19 of the report held that the State is required to apply its mind not only on the objections filed by the owner of the land; but also on the report submitted by the Collector upon making further enquiries therefor so also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefor, for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property. He placed reliance on the decisions of the Supreme Court in the case of Surinder Singh Brar and others v. Union of India and others, (2013) 1 SCC 403 and Usha Stud and Agricultural Farms Private Limited and others v. State of Haryana and others, (2013) 4 SCC 2010. He further submitted that the mandatory provision of PESA Act has not been followed while convening the Gram Sabha. So far as acceptance of compensation is concerned, relying on the decision of the Supreme Court in the case of Ashwani Kumar Dhingra v. State of Punjab, AIR 1992 SC 974, he submitted that one co-owner may challenge the acquisition, whereas the other co-owner may be satisfied with the acquisition and ask for compensation. He further submitted that the petitioner no.1 has not received any compensation. Petitioner no.1 is a member of the undivided family consisting of father and other brothers. Merely because his father has received the compensation, that does not preclude him from challenging the notification. So far as petitioner nos.2 to 4 and 6 are concerned, they have received the compensation with protest and that does not deprive them to challenge the notification, since there is no estoppel against statute.
10. Mr.R.K.Mohapatra, learned Government Advocate, argued with vehemence that notification under Section 4(1) of the Act was issued on 10.3.2011, whereas the present writ application was filed on 7.9.2012. Relying on the decisions of the Hon'ble Supreme Court in the 11 cases of Chairman & MD. BPL Ltd. v. S.P. Gururaja and others, (2003) 8 SCC 567, Andhra Pradesh Industrial Infrastructure Corporation Limited v. Chinthamaneni Narasimha Rao and others, (2012) 12 SCC 797, Aflatoon and others v. Lt. Governor of Delhi and others, (1975) 4 SCC 285 and Hari Singh and others v. State of U.P and others, (1984) 2 SCC 624, he submitted that if the landowners are really aggrieved by the acquisition proceedings, they must challenge the same at least before an award is made and the possession of the land in question is taken by the Government authorities. He submitted that when the award was passed and possession was taken, the court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. He further submitted that the writ application is liable to be dismissed due to laches on the part of the petitioners. He submitted that the defects in the notification issued under Section 4(1) of the Act are not fatal. No prejudice has been caused to any of the petitioners. Since the petitioners had not raised any objection under Section 5A of the Act with regard to wrong date of notification, wrong L.A Case number, wrong notification number, differences in the name of signatory and publication of the land schedule in English language, they are estopped from raising such questions for the first time before this Court. Rather the petitioners in their objections had stated about the correct notification number and date of publication. Mere defects will not invalidate the notification; particularly when the purpose of the land acquisition is not changed. The petitioners are the fence-sitters. They allowed the Government to complete the acquisition proceeding on the basis of the notification issued under Section 4(1) of the Act and declaration made under Section 6 of the Act. All petitioners have received the awarded amount except petitioner no.5. Mr.Mohapatra further submitted that in the objection dated 27.10.2011 filed by the objectors including petitioner nos.1 to 5, they had mentioned about the correct notification number, i.e., 10775 as well as the correct 12 notification date, i.e. 10.3.2011. But while seeking information under the RTI Act on 23.3.2012, vide Annexure-4, the petitioners sought the wrong information with regard to notification No.LA(C) 189/2010 (Sundargarh) : 10675/RDM dtd. 10.3.2010 of the Government in the Revenue & Disaster Management Department published in the Orissa Gazette. Accordingly, the information was supplied on 9.4.2012, vide Annexure-5, that no notification bearing no.LA(C) 189/2010 (Sundargarh) : 10675/RDM, dtd.10.03.2010 had been published in the Orissa Gazette by the Revenue & Disaster Management Department as by that time, the L.A case number, notification number and the notification date had already been corrected and notification under Section 4(1) of the Act had been published in the Gazette on 24.3.2011 as would be evident from Annexure F/7 of the additional affidavit dated 26.2.2014. Pursuant to the same, petitioner nos.1 to 5 had submitted their objection dated 27.10.2011, vide Annexure-16, by mentioning the date as "10.3.2011". Therefore, the petitioners cannot be permitted to blow hot and cold at the same breath. The enquiry report dated 27.10.2011 of the Collector, vide Annexure-17, would show that the Collector had taken into consideration 790 objections. Individual notices were issued to the objectors. A notice was also served in the concerned village. Thus, on the facts and circumstances of the case, full opportunity was afforded to the objectors by the Collector. Furthermore, the State authorities had complied with the provisions of the PESA Act. The Gram Sabha was held prior to the publication of notification under Section 4(1) of the Act. The provisions of the OGP Act and Rules framed thereunder have no application with regard to consultation and holding of Gram Sabha under the provisions of the PESA Act. He further submitted that the majority of the land losers having accepted the compensation and not challenged the land acquisition proceeding, challenge thereto by minuscule land losers is not maintainable and liable to be dismissed.
1311. Mr.R.K.Rath, learned Senior Advocate, adopted the submissions advanced by Mr.Mohapatra, learned Government Advocate. Mr.Rath submitted that all the statutory requirements of the Act have been sacrosantly complied with for acquisition of land for NTPC. There is no challenge to the notification under Section 4(1) of the Act, the declaration under Section 6, notice under Section 9 or award passed under Section 11 of the Act immediately after their publication by the petitioners. There is also no challenge at all to the land acquisition proceedings in question by the affected land owners, save and except, six petitioners out of which four have received the compensation without protest. The land acquisition proceedings are almost over. He submitted that since majority of the land owners do not object to the acquisition, the writ application is liable to be dismissed. He placed reliance on the decisions of the Supreme Court in the cases of Nand Kishore Gupta & others v. State of U.P & others, AIR 2010 SC 3654, Girias Investment Private Limited and another v. State of Karnataka & others, (2008) 7 SCC 53, Ramniklal N. Bhutta and another v. State of Maharashtra and others, (1997) 1 SCC 134, Municipal Corporation of Greater Bombay v. The Industrial Development Investmetn Co. Pvt. Ltd. and others, (1996) 11 SCC 501, Swaika Properties (P) Ltd. and another v. State of Rajasthan and other, (2008) 4 SCC 695 and Reliance Petroleum Ltd. V. Zaver Chand Popatlal Sumaria and others, (1996) 4 SCC 579.
12. From the pleadings and the submissions made at the Bar, the following points have emerged for consideration;
"1. Whether there is valid publication of notification under Section 4(1) of the Act in the Orissa Gazette and in two daily newspapers circulated in that locality ?
2. Whether the defects in the notification vitiate the entire land acquisition proceeding?
3. Whether the provisions of OGP Act and Rules framed thereunder or PESA Act, 1996 are applicable to the scheduled areas?14
4. Whether there is any valid Gram Sabha prior to publication of the notification under Section 4(1) of the Act?
5. Whether the Collector has considered the objection filed by the land oustees under Section 5A of the Act in its proper perspective?
6. Whether declaration under Section 6(1) of the Act has been published after one year of publication of notification under Section 4(1) of the Act?
7. Whether the writ application is maintainable by minuscule land outstees, moreso when four petitioners out of six have received the compensation without protest?
8. Whether there is a gross delay and laches on the part of the petitioners in approaching this Court ?
9. And to what relief?"
13. Point Nos.1 and 2 :
In the counter affidavit, a specific stand has been taken by the opposite parties 4 & 7 and 5 that in fact notification under Section 4(1) of the Act was issued on 10.3.2011. Due to typographical error, the date has been typed as "10.3.2010" instead of "10.3.2011". The preliminary notification under Section 4(1) of the Act was published in the Orissa Gazette (Extraordinary) vide Gazette No.603 dated 24.3.2011 and the same was published in two local dailies, "The Utkal Mail" and "Prajatantra" on 8.4.2011 and 7.4.2011, vide Annexures B/7 and C/7, respectively. From the Gazette, vide Annexure A/7, it is evident that the date of notification was "10.3.2011". But then, the notifications published in the local dailies, vide Annexures B/7 and C/7, indicate the date as "10.3.2010". In respect of letter no.10775 mentioned in the notification, the same has been mentioned as "10675" in the newspaper.
14. We have carefully and meticulously perused the Gazette and the notifications published in the local dailies. Except the aforementioned two minor discrepancies, the khata number, plot number and area mentioned in the land schedule have been correctly described. In our considered opinion, these two minor discrepancies do 15 not vitiate the land acquisition process; when there is no discrepancy in the description of land. Needless to mention here that except petitioner no.1, none had filed objection before the Collector under Section 5A of the Act. In the objection filed by petitioner no.1, he had not raised any objection relating to acquisition of land, save and except, to fulfil the demand. We fail to understand as to how petitioner no.1 filed an objection under Section 5A of the Act when the notification was not published in the local daily. It is also evident from the counter affidavit filed by opposite party no.5 that the substance of the notification was also published in the locality on 25.3.2011 in presence of five witnesses, vide Annexure G/7.
15. In view of the same, we hold that the notification under Section 4(1) of the Act was published in the Orissa Gazette (Extraordinary) vide Gazette No.603 dated 24.3.2011 and two local dailies, "Prajatantra" and "the Utkal Mail" on 7.4.2011 and 8.4.2011, vide Annexures H/7 and I/7 respectively. We further hold that the minor discrepancies in the said notification do not vitiate the land acquisition process when the khata number, plot number and area mentioned in the land schedule have been correctly described in the Gazette as well as in the newspapers.
16. Point Nos.3 and 4:
Relying on Rule 6(1) of the OGP Rules, Mr.Panigrahi submitted that since fifteen clear days notice was not issued by the Sarpanch for holding Gram Sabha, the resolution dated 28.11.2010 is void in the eye of law. The PESA Act was enacted by Parliament to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the scheduled areas. The village Darlipali under Lefripada Tahasil in the district of Sundargarh comes under the scheduled areas enumerated in the Scheduled Order. Section 4(i) of the PESA Act provides as follows:
"4. Exceptions and modifications to Part IX of the Constitution - Notwithstanding anything contained under Part IX of the Constitution, the Legislature of a 16 State shall not make any law under that Part which is inconsistent with any of the following features, namely:-
(i) the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level;
Section 5 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as "the OGP Act") provides for Grama Sabha and its functions. Sub-section (1) of Section 5 provides that there shall be at least two meetings one in February and the other in June every year of the members of the Grama Sasan and such other meetings as may be prescribed. Sub-section (3) of Section 5 provides that the Grama Sasan shall have the power to discuss and deliberate the matters enumerated in Clauses (a) to (h) of the Act. Rule 6(i) of the OGP Rules provides that at least fifteen clear days' notice of a meeting of Grama Sabha shall be given. Fifteen clear days' notice provided under Rule 6(i) of the OGP Rules is to hold Gram Sabha to discuss and deliberate the matters enumerated in Clauses (a) to (h) of sub-section (3) of Section 5 of the OGP Act. So far as scheduled areas are concerned, the Gram Sabha, for acquisition of land, is conducted as per Section 4(c) of the PESA Act. The PESA Act does not prescribe any procedure for convening the Grama Sabha.
17. From the counter affidavit, it is evident that as per the provision of the PESA Act, the Sarpanch, Darlipali Gram Panchayat was requested to consult the Gram Sabha. Thereafter, by letter no.425 dated 12.4.2010, the Sarpanch intimated all concerned to attend the meeting. On receipt of a copy of the letter of the Sarpanch, the Collector, Sundargarh authorised the Project Administrator, Integrated Tribal Development Agency, Sundargarh to remain present in the Gram Sabha. The Member of Parliament (Lok Sabha), Sundargarh, officials of NTPC, other officers like Sub-Collector, Sundergarh, Land 17 Acquisition Officer, Sundergarh, Additional Block Development Officer, Lefripada were also present in the Gram Sabha. In the Gram Sabha held on 24.4.2010, a detailed discussion on acquisition of land and rehabilitation and resettlement matter including the eleven points of demands were made. The resolution was read out and unanimously adopted by the villagers. But at the end of the meeting no written resolution could be passed as a few villagers did not put their signatures in the resolution register. Thereafter, the Sarpanch convened another Gram Sabha on 24.11.2010, but the same was adjourned due to want of quorum. Again, the Sarpanch held a Gram Sabha on 28.11.2010. In the Gram Sabha, none of the villagers raised any objection pertaining to establishment of thermal power plant in the village, but they made eleven point demands.
In view of the analysis made above, we hold that there was a valid Gram Sabha, wherein the resolution was passed for acquisition of the land.
18. Point No.5 :
We have gone through the report dated 27.10.2011 of the Collector, Sundargarh, vide Annexure-17. As would be evident from the said report, notices were served on the villagers. General notice was also served on the village. In the hearing, the villagers raised sixteen demands. The Collector came to a categorical conclusion that she was fully convinced that majority of the villagers were in favour of establishment of the project provided their demands were taken care of. Thereafter, the said report was submitted to the Government. Thus, we hold that the Collector, Sundargarh had considered the objection filed by the land oustees under Section 5A of the Act in its proper perspective. The decision of M/s. V.K.M Kattha Industries Pvt. Ltd. (supra) is distinguishable in the facts and circumstances of the present case. In the said case, a contention was raised that since the notification was not published in the conspicuous places of the locality concerned, neither the lessee of the appellant company nor the 18 appellant company came to know about the same and, as such, the appellant company was deprived of valuable right to file objection under Section 5A of the Act. In para-15, their Lordship held that there was no whisper about the publication of the substance of the notification in the locality as provided under Section 4(1) of the Act. Having held so, their Lordship allowed the appeal and quashed the land acquisition proceedings so far as appellant company is concerned. But the same is not the case here. The specific plea taken by the Government that the substance of the notification under Section 4(1) of the Act was published in the locality on 25.3.2011 in the presence of five witnesses, has not been controverted by the petitioners.
19. Point No.6 :
We have scrutinised the notification issued under Sections 4(1) and declaration under Section 6(1) of the Act. Declaration under Section 6(1) of the Act was published within one year of the publication of the notification under Section 4(1) of the Act. Thus, the said issue is answered against the petitioners.
20. Point Nos.7, 8 and 9 :
In Chairman & MD. BPL Ltd. (supra), the respondents filed a public interest litigation questioning the allotment of land to the BPL Ltd. on the ground that the statutory purposes for which the Karnataka Industrial Development Board can acquire the land had been breached. The writ application having been allowed, BPL Ltd. filed an appeal before the Supreme Court. In course of hearing, it was pointed out that the lands were allotted on 7.4.1995. The writ petition was filed on 11.11.1996 and, as such, suffered from gross delay and laches. In para-32 of the report, their Lordship held that the High Court committed a manifest error in so far as it failed to take into consideration that the delay in the case had defeated equity.
In Andhra Pradesh Industrial Infrastructure Corporation Ltd. (supra), notification under Section 4(1) of the Act was issued on 27.8.1993 for acquisition of land. Looking into the urgency under the 19 provisions of Section 17 of the Act, an inquiry under Section 5A of the Act was dispensed with. Thereafter, the notification with regard to the declaration under Section 6 of the Act was published on 8.10.1993.
Writ Petition No.5036 of 1994 was filed on 18.9.1995 before the High Court of Andhra Pradesh challenging the validity of the proceedings on various grounds. The writ petition having been dismissed, the petitioners filed Writ Appeal No.1337 of 1999. By order dated 23.7.2001, a Division Bench of the High Court quashed the order dated 27.8.1999 passed by the learned Single Judge. Being aggrieved by the said judgment and order, the appellant filed a review petition, which came to be dismissed. Thereafter, the appellant filed appeals before the Supreme Court. In para-13 of the report, it is held that if the landowners are aggrieved by the acquisition proceedings, they must challenge the same at least before an award is made and the possession of the land in question is taken by the government authorities. Relying on Swaika Properties (P) Ltd. (supra), it is held that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the court should be loath to quash the notifications. It is further held that the High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226.
In State of Orissa v. Dhobei Sethi, (1995) 5 SCC 583, it was held that on account of laches on the part of the petitioners, the writ petition was liable to be dismissed. It was further held that the High Court, was, therefore, unjustified in issuing the writ and quashing the notification and declaration under Sections 4(1) and 6 of the Act respectively.
2021. In the instant case, the petitioners have missed the bus by adopting the indolent attitude in challenging the acquisition notification promptly. Majority of the land owners do not object to the acquisition. The subject-matter of dispute only relates to acquisition of few acres of land as compared to the acquisition of large chunk, which has not been challenged. It is an admitted position that the majority of the acquisition proceedings are over. Out of six petitioners, petitioner nos.2 to 4 and 6 have received the compensation. The compensation could not be paid to petitioner no.5 in view of the pendency of the case in the court. So far as petitioner no.1 is concerned, he filed an objection under Section 5A of the Act before the Collector. He did not raise any objection pertaining to the acquisition of the land. Furthermore, he is a member of the RPDAC Committee. The Committee only raised certain demands pertaining to periphery development. Thus, all the petitioners by the conduct estopped to challenge the acquisition proceeding at a belated stage. The notification under Section 4(1) of the Act was issued on 10.3.2011 and declaration under Section 6(1) of the Act was made on 29.2.2012. The writ application was filed on 7.9.2012. Thus the writ application suffers from gross delay and laches.
22. On an anatomy of the pleadings, submissions advanced by the learned counsel for the parties and the decisions cited supra, we are in consensus ad idem that the writ application is sans any merit and deserves dismissal.
The writ application is accordingly dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J.
CHIEF JUSTICE : I agree.
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CHIEF JUSTICE
21
Orissa High Court, Cuttack.
The 23rd April, 2014/pks