RAJKUMAR GUNAWANT, SON OF MATHURA DUTT GUNAWANT, VILLAGE: BARBIL (PUNJABI PARA) PO: BARBIL, DIST: KEONJHAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed with a prayer for quashing Notification dated 05.02.2008 (Annexure-4/1) issued by opposite party no.3-Additional District Collector, Keonjhar under Section 4(1) readwith Section 17(4) of the Land Acquisition Act, 1894 (for short, "the L. A. Act") for acquiring Ac.18.999 decimals of land belonging to various persons in village Matkembeda and Notification dated 26.02.2009 (Annexure-5) issued by the Joint Secretary (Administration) under Section 6(1) of the L. A. Act. The petitioners further pray to direct opposite party No.2-Collector & District Magistrate, Keonjhar and opposite party No.4-Special Land Acquisition Officer, Keonjhar to allow the application dated 30.03.2009 (Annexure-6) and direct opposite parties to exclude the petitioner's land covered under Notification issued under Annexure-5 or in the alternative to dispose of the application of the petitioners under Annexure-6 within a stipulated period.

(2.) Petitioners' case in a nutshell is that on 24.11.2006, opposite party no.7-M/s Aryan Iron and Steel Co. Pvt. Ltd. (for short, 'Comlpany') made an application to opposite party No.6-Industrial Promotion & Investment Corporation of Orissa Limited, Bhubaneswar (IPICOL) for allotment of Ac.30.0 land for expansion of their industry. On 10.01.2007, opposite party No.6 recommended opposite party No.5- Industrial Development Corporation of Orissa, Bhubaneswar (IDCO) for Ac.55.0 acres of land for alienation/acquisition at Matkambeda at Barbil.

(3.) Mr. H. S. Mishra, learned counsel for the petitioners submitted that the Notification under section 4(1) read with Section 17(4) of the L. A. Act as per Annexure-4/1 and Notification in continuation thereof under Annexure-5 are nothing but a colourable exercise of power by the State Government. In order to exercise the power under Section 17 of the L. A. Act, it is incumbent upon the State to consider the requirements before taking possession, such as, declaration under Section 6(1), general notice under Section 9(1), demarcation under Section 8, 15 days' time to take possession and that there is urgency. In the instant case, there is no urgency because the requisitionist as well as the State Government is casual in acquiring the land, as urgency was pleaded in 2006 and the Notification was published in 2009. Possession of the land is not taken till now as no amount is deposited by the requisitionist with the District Collector. In these circumstances, the notifications as per Annexures- 4/1 and 5 cannot be said to be valid in law. Therefore, in the circumstances, invoking of power under Section 17(4) of the L. A. Act is bad in law and Notification thereto is liable to be quashed. Apart from the long delay the beneficiary Company on the demand of Land Acquisition Officer has not deposited the amount required to meet the need of payment of compensation to the land owners. Request for acquisition was made on the ground that the land is required for expansion of the industry, but the notification and material suggest that as if such land is required for setting up of industry. This shows that no care has been taken to exercise the power to acquire the land and to examine the need which vitiates the entire action of the Government. The Notifications as per Annexures-4(1) and 5 issued under Sections 4(1) and 6(1) respectively cannot sustain and therefore are liable to be quashed. Both the circumstances indicate that no due diligence has been adopted to deprive the individual land owners, whose properties are to be taken away against their will, depriving them of the right to protect their own property and that too without affording opportunity of hearing. Annexures- 4/1 and 5, therefore, cannot be allowed to sustain and are liable to be quashed. Petitioners' application to exclude the land purchased by them ought to have been considered by the State Government in their favour as they are also planning to set up a petrol pump, which is also a public purpose. Collector, Keonjhar has recommended for exclusion of the said land. The Notifications under Sections 4(1) and 6 of the L. A. Act are even otherwise vulnerable and liable to be quashed as the emergency provisions invoked by issuing Section 17(4) notification dispensing with the enquiry as provided under Section 5A of the L. A. Act even though the said provisions of the L. A. Act are not attracted to the fact situation and thereby the petitioners are deprived of their valuable statutory and human right as held by the Hon'ble Supreme Court in Devinder Singh and others v. State of Punjab and others, 2008 1 SCC 728.