The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22591 of 2022 : (A) AND W.P. (C) No.24740 of 2022 : (B) In the matter of applications under Articles 226 & 227 of the Constitution of India, 1950 and from the order dated 09.02.2022 passed by the Collector, Cuttack. ---- …. Petitioners Bishnu Charan Jena & Others (In W.P.(C) No.22591 of 2022) Arakhita Satpathy & Others (In W.P.(C) No.24740 of 2022) -versus- State of Odisha & Others (In W.P.(C) Nos.22591 & 24740 of 2022) …. Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioners -M/s.Niranjan Lenka, H.K.Mohanty, N. Lenka & P.K. Barik (Advocates in W.P.(C) No.22591/2022) M/s.Kshirod Ku. Rout, J.Naik, S.K.Rout, S.K. Bhuyan, A. Jamal, S.K.Jena, T.S. Swaraj & S. Sthitaprajna (Advocates in W.P.(C) No.24740/2022) For Opp. Parties - Mr.Ashok Parija, (Advocate General for O.Ps.1 to 5 in W.P.(C) Nos.22591 & 24740 of 2022) Page 1 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 2 }} Mr.Pradipta Ku. Mohanty, (Sr. Advocate for O.P.6 in W.P.(C) Nos.22591 & 24740 of 2022)
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 08.01.2024 : Date of Judgment : 29.02.2024 D.Dash,J. The Petitioners (fourteen in number), in filing the writ Petition as at (A), have prayed as under:- “…the impugned order dated 09.02.2022 passed by the the Opposite Party No.3 vide Collector, Cuttack, Annexrue-8 and all actions pursuant thereto shall not be quashed and why they shall not be directed to re- alienate/return back the land of the petitioners in their favour by deleting the name of IDCO therefrom by complying the order of this Hon’ble Court passed in W.P.(C) No.11778 of 2007 and batch of the cases in its letter and spirit and why the very acquisition of land of the petitioners shall not be declared as illegal.” The Petitioners (seventeen in number) have filed the writ Petition as at (B) with the following prayer:- “…the impugned order dated 9.2.2022 passed by the Collector, Cuttack, the Opposite Party No.3 vide Annexrue-9 as well as the quashing of the notifications under Annexue-1 series and all actions pursuant thereto and further issue a writ of mandamus or any other writ/writs directing the opposite parties to re-alienate/re- record the land of the petitioners in their respective names by deleting the name of IDCO therefrom and why they shall not be directed to comply the order dated 19.4.2019 W.P.(C) Nos.22591 & 24740 of 2022 Page 2 of 15 {{ 3 }} passed by this Hon’ble Court in W.P.(C) No.11778 of 2007 and batch of the cases in its letter and spirit.” The subject matter of both the writ Petitions are the same and the prayers made therein are identical. In that view of the matter, both the writ Petitions had been heard together for their disposal by this common judgment. 2. FACTS:- On 12.04.2007, the Chief General Manager, (P & A) of Orissa Industrial Infrastructure Development Corporation (hereinafter called as ‘the IDCO’), a Government of Odisha undertaking wrote a letter to the Collector & District Magistrate, Cuttack for acquisition of the lands as described thereunder which runs as follows:- Village Sl. No. 1. Nuagaon 2. Mundali 3. Talagada 4. Naraj- Marthapur P.S. Tahasil District Area Baranga Cuttack Sadar Barang Cuttack Sadar Barang Cuttack Sadar Barang Cuttack Sadar Cuttack Ac.199.370 Cuttack Ac.255.294 Cuttack Ac.209.700 Cuttack Ac.116.552 Along with the aforesaid lands, the land plans, land schedules, certificates for adopting emergency procedure, record of rights and village maps were annexed. Page 3 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 4 }} On 18.07.2007, the State Government, in the Department of Revenue and Disaster Management, published the notification under section 4(1) of the land Acquisition Act, 1894 (in short, the ‘L.A. Act’) in Extra Ordinary Gazette dated 31.07.2007. Thereafter, public notices under section 4(1) of the L.A. Act, as required under the law, were issued. Several villagers of all those villages filed their objections under section 5(A) of the L.A. Act. The Collector, Cuttack then issued notice to all those objectors as also public notice for hearing of the said objections. After that, the declaration under section 6(1) of the L.A. Act was made and the awards were passed under section 11 of the L.A. Act. The land losers including the Petitioners were noticed for receiving the compensation. The certificate of possession was issued in in favour of the Divisional Head of IDCO. The rent abatement statements and rent deduction statements were also sent by the Land Acquisition Officer to the Officer-in-Charge of Touzi & Loans, of Collectorate, Cuttack. Several land losers including the present Petitioner Nos.1 to 14 had received the compensation as awarded for the acquisition of their land, as above. 3. In relation to the above acquisition of land, Sidheswar Anchalika Surakshya Committee, Village Committee of Village- Naraj, Village Committee of Village-Marthapur and Village Page 4 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 5 }} Committee of Village-Talagadh, had carried a writ petition, i.e., W.P.(C) No.11778 of 2007. Several others including the Petitioners had filed writ petitions, i.e., W.P.(C) No.15869 of 2008, W.P.(C) Nos.6320, 6372 & 8217 of 2009, W.P.(C) Nos.16164 & 17224 of 2010, W.P.(C) Nos.8771, 10149, 27113 & 31653 of 2011 and W.P.(C) No.14720 of 2012. The notification under section 4(1) of the L.A. Act as also the declaration under section 6(1) of the L.A. Act for the acquisition of the aforesaid land in the above Villages had been challenged in those writ Petitions. All those writ Petitions stood disposed of by common order dated 19.04.2019. The Petitioners thereafter moved the Collector, Cuttack and other State functionaries for re-alienation of the acquired lands to the land owners/losers of Village-Talagada, Mundali, Naraj-Marthapur & Nuagaon. The Collector & District Magistrate, Cuttack, by order dated 09.02.2022 has rejected the prayer for re-alienation of the acquired land in favour of the erstwhile owners of all those villages. 4. We have heard Mr.Niranjan Lenka, learned counsel for the Petitioners of the writ Petition as at (A) and Mr. Khirod Kumar Rout, learned counsel for the Petitioners of the writ Petition as at (B). W.P.(C) Nos.22591 & 24740 of 2022 Page 5 of 15 {{ 6 }} We have also heard Mr.Ashok Parija, learned Advocate General for the State-Opposite Party Nos.1 to 5 and Mr.Pradipta Mohanty, learned Senior Advocate for the IDCO. We have carefully gone through the averments made in the writ Petitions as also the documents annexed thereto including the notifications, objections, declarations and the order of the Collector, Cuttack dated 09.02.2022. We too have perused the counters and rejoinders. 5. Admitted position emerges that in relation to the acquisition of all these lands, the Extra ordinary writ jurisdiction of this Court under Articles 226 & 227 of the Constitution of India had earlier been invoked through several writ Petitions challenging the legality and propriety of the notification under section 4(1) of the L.A. Act and the declaration made under section 6(1) of the L.A. Act after hearing the objections filed by the villagers of the concerned villages including some of the Petitioners under section 5(A) of the L.A. Act. After about fifteen years of institution of those writ Petitions,
Decision
this Court disposed of all those on 19.04.2019. The said order dated 19.04.2019, being relevant for the present purpose, is reproduced hereinbelow:- “19.04.2019. Heard Mr. Niranjan Lenka and other learned counsel for the petitioners in respective writ petitions, Mr. R.K. Rath, Page 6 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 7 }} learned Sr. Advocate and Mrs. Pami Rath, learned counsel on behalf of the TATA Power Company Ltd., Mr. S.P. Mishra, learned Sr. Advocate for IDCO, Bhubaneswar and Mr. R. Mohapatra, learned Govt. Advocate on behalf of opposite parties-Government. By way of these writ petitions, in substance, petitioners have challenged issuance of the Notification U/s. 4(1) and declaration U/s. 6(1) of the Land Acquisition Act for setting up a Thermal Plant by the TATA Power Corporation Ltd. in Naraj-Marthapur area. Be that as it may, the said proceedings were of the year 2007-08 and in the meantime more than a decade has been elapsed. In view of the lapse of time, it will not be proper to disturb the said proceedings at this belated stage, more particularly when learned Advocate General submits that most of the land losers have already accepted compensation for acquisition of their land. However, it is submitted by the learned counsel for the petitioners that the purpose for which the land has been acquired, it has not yet been utilized for that purpose. If it is so, the petitioners are at liberty to move application before the appropriate authorities, as per law, for realienation of the said land in their favour, which will be dealt with in accordance with law. With the aforesaid observation these writ petitions stand disposed of. Interim order, if any, passed earlier stands vacated.” 6. A reading being given to the above order, it would be evident that taking into account the facts and circumstances and considering the rival submission, this Court had refused to disturb the said land acquisition proceeding taken up for the acquisition of the land in those villages. It then, however, keeping in view the Page 7 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 8 }} submission of the learned counsel for the Petitioners that the acquired land had not been utilized for the purpose for which those had been acquired, only granted the liberty to the Petitioners to move applications before the appropriate authority for re- alienation of the land in their favour for being dealt in accordance with law. This order was not further challenged and thus attained finality. 7. It is pertinent to mention here that the Petitioners and others thereafter made their applications before the Collector only praying therein, re-alienation of the land in their favour. When said applications were not timely attended to, two writ petitions, i.e., W.P.(C) Nos.11046 of 2020 had been filed by Arjun Rout and 59 others of Village-Sanamundali and Badamundali prayer for a direction to comply the order dated 19.04.2019 passed in W.P.(C) No.11778 of 2007 and batch. With similar prayer, W.P.(C) No.35948 of 2020 had been filed by Sadhu Charan Maharana and 56 others of Village-Sanamundali & Badamundali. The former stood disposed on 28.07.2022 as being infructuous in view of disposal of the applications for re-alienation by the Collector, Cuttack on 09.02.2022 and the latter one was withdrawn with liberty to file better application. The Collector, Cuttack, by the order dated 09.02.2022, has rejected those applications seeking re-alienation. The order passed Page 8 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 9 }} therein, which has been impugned in this writ Petitions, reads as under:- “09.02.2022 Case is taken up today. Ld. GP and Ld. AGP Smt. Priyambada Mohapatra are present. Miss Arundhati Pattnaik, Land Officer, IDCO is present. Sri Arjun Roula President of Sidheswar Anchalika Surakshya Committee, Sanamunduli, Cuttack who is also a land loser along with other land losers namely; Smt. Kumudini Sahoo, Sri Minaketan Sahoo, Sri Gangadhar Sahoo, Sri Amar Berma and Smt. Laxmi Berma are present. They have filed a Petition which forms part of the case record. Perused the order dated, 19.04.2019 passed by the Hon’ble High Court of Orissa in W.P.(C) No.11778 of 2007 with observation that the petitioners have challenged that since the purpose for which their land has been acquired is not yet utilized, the petitioners are at liberty to move application before the appropriate authorities for re-alienation of the said land in their favour which will be dealt in accordance with law. Accordingly, the petitioners have filed a petition dated, 26.11.2021 before the Collector, Cuttack for re-alienation of their respective acquired land in their favour. It is submitted by the petitioners that they have not received the compensation amount nor any notice till date. The petitioners further allege that without any prior intimation, notice or public hearing, their land has been acquired. Sri Arjun Roula submits that they are poor cultivators and earn their livelihood through these small patches surrounded by hills and hard stones. The Land Officer, IDCO submits that compensation amount has already been deposited before the Civil W.P.(C) Nos.22591 & 24740 of 2022 Page 9 of 15 {{ 10 }} Court, Senior Division, Cuttack and the land is already recorded in the name of IDCO and forms a part of the land bank. She further submits that the provisions of the Land Acquisition Act-1894 does not envisage the process of resumption of the land after acquisition. In the meantime, in Revenue & DM Department has already notified vide Notification No.3244 dtd.20.01.2019 that acquired land, if remains un- utilized will come to the Land Bank of IDCO. As the land has been acquired for industrial purpose, it will be utilized for industrial purpose only, therefore as per law the land cannot be returned to the land losers. the Government Heard all the parties at length. Perused the orders dated 19.04.2019 of the Hon’ble High Court passed in W.P.(C) No.11778 of 2007, Govt. in Revenue & DM which are placed in the case record. The acquired land in question has been initially acquired under the provision of L.A. Act, 1894 for establishment of industries and also the same has also been recorded in the name of in Revenue & DM Department has also issued notification vide No.3244 dtd. 20.01.2019 that acquired land, if remains un-utilized will come to the Land Bank of IDCO accordingly IDCO has taken the Land in question to the Land Bank. IDCO. Government In view of the above, the petition dated, 26.11.2021 filed before the Collector, Cuttack for re-alienation of their respective acquired land is rejected being devoid of merit. Accordingly, the case is disposed of.” 8. In the above state of affair and developments, in these writ Petitions, it is no more open for the Petitioners to challenge the notifications issued under section 4(1) of the L.A. Act and the declarations made under section 6(1) of the said Act, which stood foreclosed by the order passed in the earlier batch of writ Petitions Page 10 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 11 }} disposed of on 19.04.2019, which has attained finality. Furthermore, the Petitioners, pursuant to the said order, having made their applications before the Collector, Cuttack confining their claim as to re-alienation, the Petitioners, under the circumstances, are estopped to advance any challenge to the notifications under section 4(1) of the L.A. Act and the declarations under section 6(1) of the said Act in questioning the initiation of the proceeding for acquisition, which has long since been culminated. We would now, therefore, confine our examination as to the challenge made to the order dated 09.02.2022 passed by the Collector, Cuttack rejecting the prayers of the Petitioners and others for re-alienation of the land, which had been acquired. 9. It has been held in case of Fruit and Vegetable Merchants Union -V- Delhi Improvement Trust; AIR 1957 SC 344 that:- “19. property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration.” The word employed in section 16 & 17 of the L.A. Act, i.e., “encumbrances” means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a Page 11 of 15 W.P.(C) Nos.22591 & 24740 of 2022 {{ 12 }} deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Collector of Bombay -V- Nusserwanji Rattanji Mistri; AIR 1955 SC 298, H.P. SEB -V- Shiv K. Sharma; (2005) 2 SCC 164 and AI Champdany Industries Limited -V- Official Liquidator; (2009) 4 SCC 486. 10. In case of State of Himachal Pradesh -V- Tarsem Singh (2001) 8 SCC 104, the Hon’ble Apex court held the terminology “free from all incumbrances” used in section 16 of the L.A. Act, is wholly unqualified and would encompass the extinguishing of “all rights, title and interests including easementary rights” when the title vests with the State. Thus, “free from encumbrances” means vesting of land in the State without any charge or burden in it. Thus, the State has absolute title/ownership over it. 11. In so far as the non-user of the land acquired for the purpose for which the acquisition had been made, we may profitably refer to the decision of the Hon’ble Apex Court in the case of Sulochana Chandrakant Galande -V- Pune Municipal Transport & Others; (2010) 8 SCC 467. Paragraph-18 of the said judgment reads as under:- “18. So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on W.P.(C) Nos.22591 & 24740 of 2022 Page 12 of 15 {{ 13 }} the power of the State Government to change user of the land in the manner it chooses.” 12. In that very case, the Hon’ble Apex Court has taken note of the decision in the case of Gulam Mustafa -V- State of Maharashtra; (1976) 1 SCC 800, which reads as under:- “5….. once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the …. declaration.” 13. The above view has been reiterated by the Hon’ble Apex Court in case of C. Padma -V- Government of Tamil Nadu; (1997) 2 SCC 627 that if by virtue of a valid acquisition of land, the land stands vested in the State, thereafter, the claimants are not entitled to restoration of possession on the grounds that either the original public purpose has ceased to be in operation or the land could not be used for any other purpose. 14. In case of Bhagat Singh -V- State of Uttar Pradesh; (1992) 2 SCC 384 and Niladri Narayan Chandrdhurja -V- State of West Bengal; (2002) 9 SCC 682, the Hon’ble Apex Court has held that the land user can be changed by the statutory authority after the land vests in the State free from all encumbrances. W.P.(C) Nos.22591 & 24740 of 2022 Page 13 of 15 {{ 14 }} 15. Having taken note of all these above, the Hon’ble Apex Court, in the case of Sulochana Chandrakant Galande (Supra), has held as under:- “In view of the above, the law can be summarized that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the landowner how his land is used and 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. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.” 16. Adverting to the facts and circumstances, as obtained in the present cases, it is also found that many such land losers have already received compensation awarded for the acquisition of their lands which also include some of these Petitioner Nos.1 to 14. The land, having been acquired at the instance of IDCO established under the Orissa Industrial Infrastructure Development Corporation Act, 1980 although had not been utilized for the purpose for which those had been acquired, yet it reveals from the records that the lands, having been recorded in the name of IDCO, those are with the IDCO in their land bank, kept reserved for facilitating the industrial infrastructure development in the area. It is also not denied that the compensation amount has been deposited with the learned Civil Judge, Senior Division, Cuttack. The acquired lands, as per the W.P.(C) Nos.22591 & 24740 of 2022 Page 14 of 15 {{ 15 }} notification of the Government of Odisha in the Department of Revenue & Disastrous Management dated 20.01.2019, has come to the land bank of IDCO for its utilization only for the industrial purpose. The lands once vested in the State and ultimately, having gone to the land bank of IDCO, no such fault is found in the order of the Collector, Cuttack dated 09.02.2022 so as to be interfered in exercise of the extra ordinary writ jurisdiciton. In the obtained facts and circumstances, on the anvil of the settled position of law as discussed hereinabove, we find that the Petitioners are not entitled to the reliefs as prayed for. 17. In the wake of aforesaid, both the writ petitions are found to be devoid of merit and are accordingly dismissed. For the dismissal of the writ petitions, the interim orders passed earlier do not survive to hold the field. There shall, however, be no order as to cost. The interim order passed stands vacated. G.Satapathy, J. I Agree. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 01-Mar-2024 17:59:52 W.P.(C) Nos.22591 & 24740 of 2022 (D. Dash), Judge. (G.Satapathy), Judge. Page 15 of 15