Orissa High Court
Trinath Sahoo vs State Of Orissa And Others on 15 May, 2017
Equivalent citations: AIR 2017 (NOC) 706 (ORI.)
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.18 of 1996
From the judgment and decree dated 4.11.1995 and 17.11.1995
respectively passed by Shri M.K. Mohanty, learned 1st Addl. District
Judge, Berhampur in T.A. No.42 of 1993 (T.A. No.75/92 GDC)
confirming the judgment and decree dated 21.9.1991 and
11.10.1991 respectively passed by Sri K.B. Sahu, learned
Subordinate Judge, Aska in T.S. No.39 of 1988.
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Trinath Sahoo ................. Appellant
---versus--
State of Orissa and others .................. Respondents
For Appellant : Mr. Sapan Kumar Pal, Advocate
For Respondents : Mr. P.C. Panda, Addl. Govt. Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 05.05.2017 │ Date of Judgment: 15.05.2017
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Dr. A.K. Rath, J.Plaintiff is the appellant against a confirming judgment.
02. The case of the plaintiff is that he is an Ex-Army personnel. After retirement from Indian Army, he applied for settlement of some lands in his favour as per the policy of the Government. Accordingly, the suit schedule land was settled in his favour. The final record of right was published in the year 1966 in his name. He was in possession of the land. He used to pay rent. The suit land was surrounded by reserved forest. On the south, there was a footpath leading to the schedule land. The same was the only access to the schedule land. While the matter stood thus, 2 the Government of Orissa acquired the suit land for construction of Raghunath Sagar Minor Irrigation Project and took advance possession of the same on 1.1.1973. He signed the agreement to that effect and was instructed not to go to the suit land. He awaited to receive the compensation. Subsequently by notification dated 1.6.1976, a sum of Rs.3,2471.01 paise was sanctioned for payment of compensation to him and another for the compulsory acquisition of area Ac.20.56 cents, out of which area of Ac.14.540 decimals belongs to him. He was entitled to Rs.22,963.44 paise towards compensation. The amount was not paid. In January, 1977, he was informed by the Superintending Engineer, Rural Engineering Organization (Southern Range), Berhampur, defendant no.3, that the suit land was not submerged under the water of the Raghunath Sagar Minor Irrigation Project and as such no compensation was payable to him. It was further pleaded that by virtue of the compulsory acquisition of land, he was entitled to certain amenities. The same had been denied to him. He tried to take possession of the suit land and raise crops, but the same was futile. The defendants informed him to attend the spot inspection from the year 1977 till 1980. During summer months of the year 1983, the Aska Cooperative Central Bank Ltd., Aska had sanctioned a loan of Rs.6,000/- for excavating a tank in the schedule land for the purpose of pisciculture. The land was mortgaged. He reared fish. During rainy season, water of Raghunath Sagar overflowed as a result of which the southern side of the tank was damaged. He sustained huge loss. With this factual scenario, he instituted the suit in the court of the learned Subordinate Judge, Aska claiming damages @ Rs.7000/- per annum from 1983 to 1986 amounting to Rs.21,000/- with interest @12% and for a direction to the 3 defendants to lay an approach road to the suit schedule land for access to the suit land.
03. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that for excavation of Raghunath Sagar Minor Irrigation Project advance possession of the land in the year 1973 was taken after preliminary survey with a condition to pay compensation. When the project was in verge of completion, it was found that the land of the plaintiff was at higher level of the project. Accordingly the plaintiff was informed to take back the possession and the land was released in January, 1977. The defendants denied the allegation with regard to the loan incurred by the plaintiff and rearing of fish. The land was suitable for cultivation and the same can be approached by footpath.
04. On the inter se pleadings of the parties, learned trial court struck five issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf seven documents had been exhibited. The defendants had examined two witnesses and on their behalf three documents had been exhibited.
05. Learned trial court came to hold that the oral evidence of D.W.2 along with the documents, i.e., the letter issued by the Asst. Engineer, M.I. Sub-Division, Digapahandi to the Executive Engineer, Ganjam, M.I. Division, Berhampur dated 17.3.83, Ext.A and sketch maps, Ext.B and C fully establish the case of the defendants that there are approach roads to the suit land. It was further held that the plaintiff was not entitled to get damages. The suit was dismissed. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned 1st 4 Additional District Judge, Berhampur in T.A. No.42 of 1993, which was eventually dismissed.
06. The second appeal was admitted by a Bench of this Court on the following substantial questions of law.
"i) Whether after having taken recourse to the provisions of Section 17(1) of the Land Acquisition Act and after taking possession of the acquired land under such provision, the State Government can subsequently release the said property from acquisition ?
ii) In view of the legal position as laid down in A.I.R. 1996 S.C.122 (Awadh Bihari Yadav and others -v- State of Bihar and others) that as soon as the Government takes possession of the land by applying the power u/s.17(1) the owner is divested of the title to the land and the title is vested in the Government, whether the State Government can unilaterally release the concerned land from acquisition ?"
07. Heard Mr. Sapan Kumar Pal, learned counsel on behalf of Mr. D. Samal, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate, for the respondents.
08. Learned counsel for the appellant submitted that Government of Orissa had issued notification under Sec.17(1) of the Land Acquisition Act and took possession of the suit land in the year 1973. Thereafter the suit land vested in the State. Subsequently the Government cannot unilaterally release the land from acquisition. He further submitted that the plaintiff had taken loan from the Aska Co- operative Central Bank Ltd., excavated the tank and reared fish. Since the water of the Raghunath Sagar overflowed, the south side edge of the tank was completely damaged, resulting damage of the tank. The plaintiff had sustained huge loss. There is no approach road to the land of the plaintiff. He relied on the decisions of the apex Court in the case of LT. Governor of Himachal Pradesh and 5 another vs. Sri Avinash Sharma, AIR 1970 SC 1576 and Satendra Prasad Jain and others vs. State of U.P. and others, AIR 1993 SC 2517.
09. Per contra, Mr. Panda, learned Additional Government Advocate, for the respondents submitted that both the courts concurrently held that there was approach road to the plaintiff's land. The possession of the land was taken in the year 1973. The land was released in the year 1976. The plaintiff is not entitled to any damages.
10. The plaintiff asserts that notification was issued by the State of Orissa under Sec.17(1) of the Land Acquisition Act, 1894 for acquisition of the land. But then, no notification had been exhibited either by the plaintiff or by the defendants. Reliance placed on the Supplementary Orissa Gazette Notification dated 16.5.1977 is totally mis-placed. The Government of Orissa in its Irrigation and Power Department had passed a resolution on 20.04.1977 formulating a policy for rehabilitation of the family of the land oustees. Thus in the absence of any notification, it is difficult to hold that the land was acquired by the State of Orissa. But then, the defendants pleaded that the land was in their possession since 1973 to 1976.
11. In LT. Governor of Himachal Pradesh and another (supra), the apex held:
"7. In State of Madhya Pradesh v. Vishnu Prasad Sharma, 1966-3 SCR 557 = (AIR 1966 SC 1593) on which reliance was placed, the only question which fell to be considered by the Court was whether a notification under S.4 (1) may be followed by successive notifications under section 6 for small parts of the land comprised in one notification issued under S.4. The Court rejected the contention that State was invested with such a power. In considering the argument the Court referred to the power to cancel the notification under S.21 of the General Clauses Act, apart from the 6 power conferred by S.48 of the Land Acquisition Act. The Court observed:
"Section 48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under section 9(1) and it provides for payment of compensation under Section 48(2) read with Section 48(3). We cannot x x accept the argument that without an order under Section 48 (1) the notification under Section 4 must remain outstanding. It can be cancelled at any time by Government under Section 21 of the General Clauses Act and what Section 48(1) shows is that once Government has taken possession it cannot withdraw from the acquisition. Before that it may cancel the notification under Section 4 and 6 or it may withdraw from the acquisition under Section 48(1). If no notice has been issued under Section 9(1) all that the Government has to do is to pay for the damage caused as provided in S.5; if on the other hand a notice has been issued under Section 9(1), damage has also to be paid in accordance with the provisions of S.48(2) and (3)."
But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken pursuant to a notification under S.17(1) the land is vested in the Government, and the notification cannot be cancelled under S.21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under S.48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under S.17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."
12. The same view was reiterated in Satendra Prasad Jain and others (supra). The apex Court held:
"14. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when 7 Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.
15. Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation."
13. The decisions cited by the learned counsel for the appellant are distinguishable on facts. As held supra, there was no notification under Sec.17(1) of the Land Acquisition Act.
14. The apex Court in the case of P.T. Munichikkanna Reddy and others vs. Revamma and others, AIR 2007 SC 1753 held that property right is not only the constitutional right but also human right. The State Government cannot deprive any person in enjoying the property. For illegal deprivation of enjoying the property for three years, the State Government is liable to pay damages to the plaintiff. The evidence available on record for damages is scanty. Considering the extent of land, this Court nominally assessed the same to the tune of Rs.15,000/-. The substantial questions of law are answered accordingly.
815. Resultantly, the judgments of the courts below are set aside. The appeal is allowed to the extent indicated above. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 15th May, 2017/Basanta