Misc. Case No. 2 of 2018 · Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 39545 OF 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Kuntala Nayak & Ors. ..… Petitioners AFR -Versus- Competent Authority & Land Acquisition Officer, Special Land Acquisition Cell (NH) OR-II, N.H. No.5, Bhubaneswar & Ors. ….. Opp. Parties For Petitioners : M/s. T.K. Mishra, P.K. Lenka and P. Bastia, Advocates For Opp. Parties : M/s. Ajit Patnaik & M.R. Padhi, Advocates [O.P. No.1] M/s. G.M. Rath, A.S. Mohanty and S. Jena, Advocates, [O.Ps. No.2-25] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE M.S. RAMAN DECIDED ON : 04.05.2023 // 2 // DR. B.R. SARANGI,J. The petitioners, who were opposite parties no.22 to 27 before the Principal Civil Court of the Original Jurisdiction, namely, District Judge, Cuttack, by means of this writ petition, seek to quash the judgment dated 30.11.2021 passed in NH Reference Misc. Case No.2 of 2018, by which learned District Judge, Cuttack has disposed of the said reference case with the observation that opposite parties no.1 to 21 therein are entitled to receive compensation in respect of the land acquired by the N.H. Authority under Reference and the petitioners are not entitled to receive any compensation in respect of the land acquired under the Reference. 2. The factual matrix of the case, in brief, is that plot No.1225, Ac.2.110 dec., Kisam-‘Jalasaya-2’ was originally recorded in Khata No.274 of Mouza-Gopalpur in the names of Jagannath Behera, Fagumani Behera, Kartik Behera and Babaji Behera, all are sons of Gandharb Behera of Gopalpur under ‘stitiban’ status. Out of Ac.2.110 dec. from Plot No.1225, an area of Ac.0.265 dec. was acquired for expansion of National // 3 // Highway No.5. An inquiry was made by the Amin appointed by opposite party no.1 and in his report it has been informed that apart from Babaji Behera, all other recorded tenants are dead and they have left behind them their legal heirs and successors described as opposite parties no.3 to 25. Opposite party no.3 Nishamani Behera, W/o Late Jagannath Behera died and her name was deleted from the cause title of the petition since other legal heirs of their branch were already on record. During pendency of the Reference case, opposite party no.20, namely, Basanta Behera died and his legal heirs were substituted. 2.1 Notices were issued to the recorded tenants and their successors to appear before the authority. Petitioner no.2-Maheswar Nayak filed a petition on behalf of himself and other petitioners, namely, Kuntala
Legal Reasoning
Nayak, Kailash Chandra Nayak, Meera Nayak, Itishri Nayak and Uma Bewa on 16.09.2017 with regard to pendency of some civil litigations in respect of the lands acquired. Since objections were raised by the petitioners, who were opposite parties no. 22 to 27 before the court // 4 // below, claiming compensation in respect of the acquired land, disputing the entitlement of opposite parties no.2 to 22 therein, the Competent Authority referred the matter to the Principal Civil Court of Original Jurisdiction, i.e., the District Judge, Cuttack under Sub- section (4) of Sec.3H for a decision of apportionment of the compensation amount of the acquired land after deciding the right and title of the case land. Against such Reference of the Competent Authority, opposite party no.3-Nisamani Behera & others preferred W.P.(C) No.27431 of 2017 and this Court, vide order dated
Decision
22.7.2021, disposed of the said writ petition directing the learned District Judge, Cuttack to dispose of the Reference case as expeditiously as possible and in any event not later than six months from the date of the order. 2.2 Opposite parties no.2 to 22 in the Reference case filed their objection and contended that the National Highway Authorities acquired the land out of Plot No.1225 (sabik) corresponding to 1973 Settlement Plot No.1898 measuring an area Ac. 2.710 dec. under Khata // 5 // No.443 of Village-Pratapnagari. The said plot originally belonged to the predecessors of the petitioners and it was recorded in the name of Late Biswanath Nayak, who sold the properties covered under Hal Khata No.1858 in favour of Kartik Behera, Jagannath Behera, Babaji Behera and Fagumani Behera, the predecessors of the opposite parties on 18.6.1975 and accordingly, opposite party no.2 and the predecessors of other opposite parties remained in exclusive possession of their purchased properties i.e. Ac. 2.710 dec. out of Plot No.1851. After the sale, Biswanath Nayak, the predecessor of the petitioners was not in possession of any portion of the land sold. It is also contended that by virtue of their purchase, vide Regd. Sale Deed dated 18.6.1975, opposite party no.2 and the predecessors of opposite parties no.2 to 22 acquired exclusive right, title, interest and possession over the Plot No.1858 measuring an area Ac.2.710 dec. It is also contended that during the consolidation operation, the area of the purchased land remained intact and there was no enhancement of its area either in the ROR or in the village map. It is also // 6 // contended that the petitioners have no right, title, interest and possession over any portion of the land acquired by the N.H. Authorities and, as such, they are not entitled for any compensation. 2.3 The petitioners filed their objection contending that Jagannath Behera, Fagumani Behera, Kartik Behera and Babaji Charan Behera, as Plaintiffs, had filed Title Suit No. 15/2001 in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack in respect of Plot No.1858 measuring an area Ac.0.38 dec. claiming to be in possession of Ac.3.09 dec. instead of Ac.2.71 dec. and they are in adverse possession of an area Ac.0.38 dec. bearing Hal Plot No.1858 and claimed reliefs for declaration of their right, title and interest, confirmation of possession and for other reliefs and the aforesaid suit was dismissed on 29.8.2007. It is also contended that Rabindranath Nayak, as Plaintiff, had filed Civil Suit No.138/2008 in the Court of learned Civil Judge (Senior Division), 1st Court, Cuttack for a decree for measurement and demarcation of the disputed property and for declaration that he is the owner in respect of the // 7 // said Schedule ‘C’ property i.e. an area of Ac.0.36 dec. out of Hal Consolidation Plot Nos. 1224, 1225, 1226, 1229, 1232, 1233, 1234 and 1235 described in Schedule- ‘C” of the plaint. It is also contended that the present disputed property bearing Khata No.753, Plot No.226, area Ac.0.12 dec. has been shown under Lot No.III of Schedule-‘C’ of Civil Suit No. 138 of 2008 and the said Schedule-‘C’ is corresponding to Hal Khata No.443, Plot No. 1858, Area Ac.2.71dec. and the said Civil Suit is pending in the Court of the 1st Additional Civil Judge (Sr.Dvn.), Cuttack for adjudication. It is also contended that in Civil Suit No.138/2008, the petitioners, as Plaintiffs have claimed an area measuring Ac.0.13 dec. out of Ac.2.11 dec. and filed objection before opposite party no.1 claiming release of the compensation amount to that extent of the land in their favour. It is also contended that out of the acquired land of Ac.0.265 dec. by the N.H. Authorities, the said area of Ac.0.130dec. has also been acquired and, therefore, opposite parties no.2 to 22 therein are entitled to compensation for their land to the extent of Ac. 0.135dec. out of Ac. 0.265 dec. // 8 // and the present petitioners are entitled to receive compensation for the acquired land of Ac.0.130dec out of Ac.0.265 dec. 2.4 It is further contended that initially the disputed land along with other lands stood recorded in the names of Sananda Swain & others as per the Settlement ROR of 1931. The recorded tenants on 20.8.1947 sold the area of Ac.3.54 dec. by virtue of Regd. Sale Deed in favour of Biswanath Nayak, the predecessor of the petitioners. It is also contended that in 1973 Settlement, the land purchased by Biswanath Nayak was recorded in his name and the ROR was issued in his favour in respect of the land measuring an area of Ac.2.71 dec. It is also contended that Biswanath Nayak during his life time had sold some lands out of the purchased land of Ac.3.54dec. and he was in possession of Ac.3.07 dec. of land, but wrongly in 1973 Settlement the land to the extent of Ac.2.71 dec. out of the said purchased land was settled in his name which is not correct. It is also contended that on 18.6.1975, Biswanath Nayak, by virtue of Regd. Deed of Sale, sold // 9 // the entire Ac.2.71 dec. of land to Babaji Behera (opposite party no.2) and the predecessors of opposite parties no.3 to 22 and remained in possession of Ac.0.36 dec. of land he had purchased. The Consolidation ROR also reveals that the land measuring an area of Ac.2.71 dec. was recorded in the names of opposite party no.2 and the predecessors of opposite parties no.3 to 22. It is further contended that out of Ac.0.36dec., the N.H. Authority acquired Ac. 0.130 dec. and, as such, the successors of Biswanath Nayak are entitled to receive compensation of the land acquired by the N.H. Authority i.e. Ac.0.130dec. 2.5. Opposite parties no.2 to 22 in the Reference case submitted that during the Settlement 1973, plot No.1858 was recorded in the name of Biswanath Nayak to the extent of Ac. 2.71 dec. and by virtue of the Regd. Deed of Sale dated 18.6.1975 executed by said Biswanath Nayak, the area of the entire plot was transferred in favour of opposite party no.2 and the predecessors of opposite parties no.3 to 22. It is contended that during the consolidation operation, ROR was prepared in favour of opposite party no.2 and the // 10 // predecessors of opposite parties no.3 to 22 in respect of Ac.2.110 dec. It is further contended that neither during the settlement operation nor during the consolidation operation any objection was raised from the side of Biswanath Nayak or his successors-opposite parties. It is further contended that there is no material to show that any land measuring an area of Ac.0.35 dec. was ever available with the petitioners and, as such, there is no question of acquisition of any land belonging to them. 3. On verification of records, it appears that initially the disputed land along with other land stood recorded in the names of Sananda Swain & others, as per the Settlement ROR of 1931. On 20.8.1947, the recorded tenants Madhusudhan Swain, Bairagi Swain and others sold Ac.3.54 dec. land to Biswanath Nayak by virtue of a Regd. Deed of Sale. During the Settlement of 1973, the said land was recorded in the name of Biswanath Nayak under Khata No.443, Plot No.1858 measuring an area of Ac.2.71 dec. On 18.6.1975, Biswanath Nayak executed four Sale Deeds in favour of opposite party no.2 and the predecessors of opposite // 11 // parties no.3 to 25 in respect of the entire land of Ac.2.71 dec. After purchasing the said land from Biswanath Nayak, some lands were sold by opposite party no.2 and the predecessors of opposite parties no.3 to 25. During the consolidation operation, ROR was prepared in the names of Jagannath Behera, Fagumani Behera, Kartik Behera and Babaji Behera in respect of Plot No.1225 to the extent of Ac.2.110 dec. 4. The National Highway Authority acquired an area of Ac.0.265 dec. out of Ac.2.110 dec. from Plot No.1225. Therefore, it is to be examined whether any land of the petitioners has been acquired by the National Highway Authority or whether the petitioners have any right in respect of any portion of land acquired by the National Highway Authority? 5. There is no dispute that by virtue of a Regd. Deed of Sale, opposite party no.2 and the predecessors of opposite parties no.3 to 25 had purchased an area of Ac.2.71 dec. of land from Biswanath Nayak on 18.6.1975. It is the case of the petitioners that // 12 // Biswanath Nayak delivered possession of the land purchased by opposite party no.2 and the predecessors of opposite parties no.3 to 25 which extends to Ac.2.71 dec. of land. During the consolidation operation, deducting the sold area out of Ac. 2.71 dec., Ac. 2.11 dec. was recorded in the names of Jagannath Nayak, Fagumani Behera, Kartik Behera and Babaji Behera in consolidation Khata No.274, Plot No.1225. It is also admitted that the National Highway Authority has acquired Ac. 0.265 dec. of land out of Plot No.1225 of Khata No.274 out of Ac.2.11dec. 6. It is contended by the petitioners that though Ac.2.71 dec. of land was recorded in the name of Biswanath Nayak in 1973 Settlement, he was in physical possession of Ac. 3.06 dec. of land and claiming Ac.0.35 dec. of land C.S. No.138/2008 had been filed, which is pending before the learned Civil Judge, Cuttack and since out of that Ac.0.35 dec. of land, Ac. 0.130 dec. has been acquired by National Highway Authority, the petitioners are entitled to receive compensation against that extent of land acquired by the N.H. Authority. // 13 // If the contention of the petitioners is accepted, then question arises, where does the excess land of Ac.0.35 dec. situate? Even if it is admitted that Biswanath Nayak was in possession of Ac.3.06 dec. of land at the time of sale, then also it is not possible to show that out of the entire Ac. 3.06 dec of land, which portion the sold area of Ac.2.71 dec. appertains. In other words, it is not specified through map or boundary description that exactly which portion, out of Ac.3.06 dec. of land, was sold which extends to Ac.2.71dec. It is also not specified where the excessive land of Ac.0.35 dec. exists. Since the petitioners claim their right over Ac. 0.130 dec. of land out of the acquired land Ac.0.265 dec., it is incumbent on their part to substantiate that any portion of land over which they have got right, title, interest and possession has been acquired by the N.H. Authority or any land belonging to the petitioners is included within the area of Ac.0.265 dec. acquired by the N.H. Authority. 7. Mr. P.K. Lenka, learned counsel appearing for the petitioners vehemently contended that since C.S. // 14 // No.138 of 2008 is pending, the benefit cannot be extended to opposite parties no.2 to 25. 8. Mr. G.M. Rath, learned counsel appearing for opposite parties no.2 to 25 vehemently contended that if area Ac.0.265 dec. has been acquired by the N.H. Authority, which was purchased by executing sale deed on 18.06.1975, and since opposite parties no.2 to 25 are in exclusive possession of the same having right, title, interest and possession, they are entitled to get compensation. 9. On perusal of the order dated 30.11.2021 passed by the learned District Judge, Cuttack in N.H. Reference Misc. Case No.2 of 2018, it is made clear that since opposite parties no.2 to 25 are in possession of area Ac.0.265 dec. from out of area Ac.2.110 dec. of Plot No.1225, the petitioners have no right to claim compensation determined by the N.H. Authority. 10. Therefore, this Court is of the considered view that if an area Ac.0.265 dec. from out of the area Ac.2.110 dec. of Plot No.1225 has been acquired by the // 15 // N.H. Authority, which belongs to opposite parties no.2 to 25, pursuant to sale deed executed on 18.06.1975 in their favour, the claim of the petitioners for disbursement of compensation amount in their favour does not arise. Thereby, learned District Judge, Cuttack, after due adjudication and after giving opportunity of hearing to the parties, has come to a definite conclusion vide judgment dated 30.11.2021 in N.H. Reference Misc. Case No.2 of 2018 that opposite parties no.2 to 25 are entitled to get compensation in respect of the land acquired by the N.H. Authority under Reference. As a consequence thereof, the petitioners are not entitled to get any compensation for the said land. 11. In the above view of the matter, this Court does not find any error apparent in the judgment dated 30.11.2021 passed by the learned District Judge, Cuttack in N.H. Reference Misc. Case No.2 of 2018 in exercise of power under Section 3H(4) of the National Highways Act, 1956 in resolving the dispute between the parties. // 16 // 12. Therefore, the writ petition merits no consideration and the same is dismissed, but, however, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Orissa High Court, Cuttack The 4th May, 2023, Alok ALOK RANJAN SETHY Digitally signed by ALOK RANJAN SETHY Date: 2023.05.10 12:54:16 +05'30'