SANJAY DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner's mother was the record tenant in respect of the acquired land measuring an area of Ac.9.89 decimals. After abolition of the estates, such lands vested with the State government under the provisions of the Orissa Estates Abolition Act, 1951(hereinafter called as the "O.E.A. Act") and on the application filed by his late mother of the petitioner under the O.E.A. Act, O.E.A. Case Nos.48 & 49 of 1968 -69 were registered in the office of Additional Tahasildar, Sadar, Cuttack and rights in respect of the acquired land were settled in her favour by his order dated p1.10.1982 in exercise of his power under Section 8(1) of the O.E.A. Act, which order was confirmed by the Supreme Court in determining the statutory right in favour of the petitioner's mother as a tenant in respect of the acquired land. The petitioner, who succeeded to the estate of his mother as her legal heir, is before this Court questioning the legality and validity of the acquisition proceedings initiated by the State Government at the instance of the Cuttack Development Authority (hereinafter called as the "C.D.A.") for the purpose formation of residential lay out under the provisions of Orissa Development Authorities Act, 1982 and the preliminary notification dated 25.07.1983 issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called as 'L.A.Act') followed by Section 17(1)(4) notification dated 3.8.1983 dispensing with the enquiry as provided under Section 5 -A of the L. A. Act and thereafter the publication of declaratory notification dated 18.10.1984 made U/s.6 and the award in respect of the acquired land passed in favour of the Collector after lapse of 20 years on 5.2.2004. He has sought to quash the said impugned notifications and award urging various facts and legal grounds.

(2.) THE relevant and necessary facts are briefly stated in this judgment for the purpose of appreciating the rival legal contentions urged by the learned Senior Advocate appearing on behalf of the petitioner and the learned Government Advocate for the State and its officers and the learned counsel for C.D.A.

(3.) THE claim of the petitioner is that his mother had raiyati right over the land bearing Hal Plot No.80 under Khata No.330 measuring an area of Ac.9.89 decimals in Mouza Bidyadharpur w.e.f. 1.10.1982 and the said land was the subject matter of the acquisition proceedings initiated by the State Government under the L.A. Act at the instance of the CDA for formation of residential lay out. It is stated by the petitioner that the notification published under Section 4(1) of the L.A. Act was followed by a notification under Section 17(1) and (4) of the L.A. Act though there was no urgency for the State Government to invoke emergency clause either at the relevant time or at a time subsequent to the amendment of the above provision by Act No.68/84 which came into force w.e.f. 24.09.1084 in so far as the housing scheme to be implemented by the C.D.A. was concerned as provided under the L.A. Act to dispense with the enquiry in the acquisition proceedings, which is not only a fundamental right, but also human right of the petitioner as held by the Supreme Court in a catena of cases. Therefore, it is pleaded by the petitioner that his valuable statutory right to file objections to the preliminary notification published U/s.4(1) of the L.A. Act regarding the proposed acquisition of land and personal hearing was denied to him by the State Government in exercise of its so -called power by issuing notification under Section 17 of L.A. Act, for which it is not empowered in law. Therefore, the acquisition proceedings under Section 6 notification published declaring that the land in question along with other land is required to be taken by the Government for the public purpose in favour of the development authority for the purpose of implementation of the housing scheme by forming the residential lay out under the Development Authority Act is void ab initio in law. It is further contended that after the said declaratory notification U/s.6 was published on 18.10.1984, the same was followed by issuance of certificate of possession of the land and the delivery of possession of the same to the C.D.A. is not in conformity with Section 16 of L.A. Act, which provides that after passing of the award in respect of the land involved in this case, possession can be taken by the Collector upon which the acquired land vests with State Govt. and thereafter it can transfer the land and deliver possession to the C.D.A. So, issuance of the certificate of possession of the land in favour of C.D.A. is also bad in law as the Collector had not taken possession of the acquired land from the petitioner - land owner and it was also not preceded by passing of an award by the Collector within two years from the date of the declaratory notification published under Section 6 of the L.A. Act. Therefore, due to non -passing of the award by the Collector within two years statutory period as amended by Act No.68/84 which came into force w.e.f. 24.9.1984 after publication of Section 6 notification, the acquisition proceedings lapsed under Section 11 -A of the L.A. Act. It is further pleaded by the petitioner that the acquired land did not vest with the State government. Therefore, the question of taking over possession of the land and transfer of the same to the Development Authority did not arise at all. Mr. Padhi relied upon a decision of the Supreme Court in the case of Balwant Narayan Bhagde V. M.D. Bhagwat and others, 1975 AIR(SC) 1767 wherein at paragraph 26 the Supreme Court has made relevant observation regarding the mode of taking over possession of acquired land. It is further contended by him that Section 11 -A of the L.A. Act provides for passing of award by the L.A. Collector within a period of two years from the date of publication of the declaratory notification U/s.6 and thereafter notice for taking over possession of the land shall be issued calling upon the owner to deliver possession evidencing the factum of taking over possession U/s.6. But that has not been done in the case on hand by the State Government. Therefore, the acquisition proceedings in respect of the land in question are void ab initio in law. The learned Senior Advocate contends that if a statute provides for the statutory authority to do a thing in a particular manner, then it has to be done in that manner or not at all. If the statutory authority follows a course other than the procedure laid down in the statute, the same is not permissible in law. In support of the aforesaid proposition of law, he has placed reliance upon a judgment of the Supreme Court in the case of Babu Verghese and others V. Bar Council of Kerala and others, 1999 AIR(SC) 1281 wherein the Supreme Court after referring to the Chancery Court Decision in Taylor V. Taylor, (1875) 1 Ch D 426, Privy Council decision and the earlier decisions of the Supreme Court has laid down the aforesaid legal principle. Therefore, he submits that the action of the State Government regarding acquisition of the land by issuing Section 6 Declaratory notification, the alleged issuance of the certificate of possession of the land in question in favour of C.D.A. and passing of award in the year 2004 in favour of the District Collector of Cuttack are bad in law and therefore he has prayed to quash the same. It is further contended by him that as on the date of initiation of the acquisition proceedings in respect of the acquired land, there was a lis pending between the petitioner's mother and the State Government as she had preferred a claim under the provision of O.E.A. Act before the Tahasildar, Sadar, Cuttack to determine her statutory right of conferring the tenancy rights over the land in question to which she was legally entitled. Therefore, non -mentioning of this fact in the preliminary notification that the land of the petitioner proposed to be acquired was involved in litigation as the proceedings were pending before the Tahasildar at the instance of the petitioner's mother and not issuing notice to the petitioner's mother either at the stage of Section 4(1) or before passing of the award or at the time of alleged taking over possession of the land which is required to be followed and following the procedure to be followed for issuing notice under Section 9 and 10 of the L.A. Act before passing of the award and passing of the award admittedly beyond two years period stipulated under proviso to Section 11 -A, the acquisition proceedings lapsed.