NIHAR RANJAN BISWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application, under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, to exclude his land from the purview of the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 and to set aside the letter dated 9.11.2012 issued by the Government of Orissa in the Housing & Urban Development Department, vide Annexure 16, and the letter dated 23.2.2013 issued by the Member Secretary, Orissa Water Supply & Sewerage Board, vide Annexure-18.

(2.) Shorn of unnecessary details, the short facts of the case of the petitioner are that he is the owner of a piece of land appertaining to Khata No.24, Plot No.221, area of Ac.0.466 decimals of Mouza-Basuaghai, Bhubaneswar in the district of Khurda. The record-of-right has been issued in his name. The Government of Orissa contemplated to develop Integrated Sewerage and Solid Waste Management System for abatement of pollution of rivers Kuakhai and Daya at Bhubaneswar by constructing necessary sewage treatment plant and waste disposal systems. The Orissa Water Supply and Sewerage Board, a Government of Orissa Undertaking, opposite party no.2, (hereinafter referred to as "the Board") has been entrusted for implementing the scheme. The Indian Institute of Technology, Roorkee was requested to study all aspects of the proposed projects and prepare the detailed project report. While detailed project report was under preparation, on 18.3.2006, the Board issued a letter to the Collector and District Magistrate, Khurda to select a location for the said project comprising Government land and agricultural land of Village- Basuaghai and to take necessary action for not converting the agricultural lands mentioned in Annexure-2 series to the residential land so that those lands can be acquired for the purpose of the project. The plot of the petitioner was not mentioned in the said letter. While the matter stood thus, IIT, Roorkee submitted a detailed project report and accorded approval to the project on 23.2.2007. Further case of the petitioner is that the lands of some influential persons have been excluded from the purview of acquisition. After the Government of India approved the detailed report prepared by the IIT, Roorkee, opposite parties in the year 2006 unilaterally decided to alter the location of the project and thereby excluded the land of other persons. On 27.2.2009 the State of Orissa issued a notification under Section 4(1) of the Land Acquisition Act which was published in two local dailies. The petitioner came to know about the said notification on 24.10.2009 and sought exclusion of his land by submitting a representation. But then by letter dated 11.12.2009, opposite party no.1 rejected the representation on jejune grounds. Thereafter, he filed a writ application, being WP(C) No.8762 of 2010, which came to be dismissed on 7.7.2011. Challenging the judgment dated 7.7.2011, he filed a petition for special leave to appeal before the Supreme Court, which was dismissed as withdrawn. It is further stated that in the meantime opposite parties changed the location of the project thereby giving rise to a fresh cause of action in the writ application. Opposite parties issued a notification under Section 17(1) of the Land Acquisition Act and acquired another patch of land on 30.1.2012, vide Annexure-9. It is further stated that the acquisition of the land is violation of Article 49 of the Constitution of India; The Ancient Monuments and Archaeological Sites and Remains Act 1958; The Environment (Protection) Act, 1986; Environmental Impact Assessment (EIA) Notification, 2006; Heritage Conservation Act; The Orissa Development Authorities Act, 1982; Comprehensive Development Plan, 2010 and Bhubaneswar Development Plan Area Scheme. It is further stated that the earlier notification is bad in law in view of the acquisition of the additional patch of land on 30.1.2012. Further, though the project requires Ac.17.34 decimals of land, but then, notification has been issued to acquire Ac.26.099 decimals of land for no plausible reasons. On 21.2.2012, he made a representation and sought exclusion of the land in view of the changed location and fresh acquisition of land. In March, 2012 again the opposite parties changed the location of the project due to objection raised by Archaeological Survey of India. By a laconic order dated 9.11.2012, opposite party no.1 rejected his representation vide Annexure- 16. Again he made a representation on 27.11.2012. The same was also rejected on 23.2.2013, vide Annexure-18.

(3.) Pursuant to issuance of notice, the Board filed a counter affidavit. The sum and substance of the case of the Board is that the validity of the land acquisition notifications under Sections 4(1) and 6 of the Land Acquisition Act was the subject matter of challenge by the petitioner in WP(C) No.8762 of 2010, which was dismissed by judgment dated 7.7.2011. The petitioner, challenging the said judgment, filed a special leave petition before the apex Court. By order dated 30.7.2012, the apex Court dismissed the special leave petition. The rule of finality and conclusiveness of the said judgment operates as a bar for maintainability of the writ application. It is further stated that after hearing the matter at length, this Court by judgment dated 7.7.2011 dealt with and recorded the findings on various submissions advanced by the parties and, as such, the present writ application is barred by the principles of res judicata.