SAROJINI PRAHARAJ Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners, ten in number, have filed this Writ Petition challenging the validity of the compulsory acquisition of their lands under the emergency procedure and prayed to quash the Notification dated 22.1.2004 issued therefor by the State Government under Section 4(1) read with Sub -sections (1) and (4) of Section 17 of the Land Acquisition Act, 1894 (in short 'the Act') under Annexure -4.

(2.) THE brief facts as narrated in this Writ Petition tend to reveal that petitioner Nos. 8 to 10 are the original owners of the lands, as detailed in the Writ Petition, in Mouza -paisa under Chauliaganj P.S. of Cuttack Sadar Tahasil and petitioner Nos. 1 to 7 are the purchasers of the said lands and they have been residing in the houses constructed on their respective patches of land since last thirty years. The aforesaid area is known as Kaibalya Vihar. The State Government in Revenue Department has issued the notification under Annexure -4 to acquire the aforesaid lands for construction of drain of Mahanadi Vihar. According to the petitioners, the Cuttack Development Authority, opposite party No. 5, had earlier made an effort to acquire the same lands in order to excavate a drain for Mahanadi Vihar but the said proposal was not materialized and was kept in cold storage and after a lapse of considerable time for the self -same purpose, the Cuttack Municipal Corporation now wants to acquire the very same lands. The petitioners initially apprehending compulsory acquisition of their lands had filed a Writ Petition being W.P.(C) No. 4471 of 2003, which was dismissed on 30.7.2003 as the said Writ Petition was premature with liberty to the petitioners to approach the Court in case notification for acquisition of the lands is issued by the Government. The present Writ Petition has been filed challenging the notification issued under Section 4(1) as well as Section 17(4) of the Act, which was pressed into service by the opposite parties to dispense with the procedure laid down under Section 5 -A of the Act. It is further alleged that initially the Cuttack Development Authority contacted the petitioners to accept the proposal for acquisition of lands by accepting Rs. 40,000/ - per gunth or alternatively to accept the exchange of land with a ratio of 1 : 16 and according to the petitioners, the aforesaid being the offer of the Cuttack Development Authority, the opposite parties should not have proceeded with the compulsory acquisition.

(3.) A counter affidavit has been filed by the Land Acquisition Officer on behalf of opposite parties 1, 2 and 3 indicating therein that on receipt of requisition from the Cuttack Municipal Corporation authorities for acquisition of private lands for development of roads and drainage system for Mahanadi Vihar vide letter No. 1690 dated 3.3.2003, draft proposal for issue of notification under Section 4(1) of the Act was sent to the Government in Revenue Department vide letter No. 429/LAC dated 26.3.2003 of opposite party No. 2 and ultimately, the State Government issued the notification on 22.1.2004 which was published in Extraordinary Gazette No. 153 dated 29.1.2004. It is further indicated that proposal for development of roads and construction of drain in Mahanadi Vihar was finalized in a high level meeting held under the Chairmanship of Collector and District Magistrate, Cuttack on 27.4.2001 and the Government in the Department of Housing and Urban Development approved the proposal for the aforesaid project and decided to purchase private lands measuring an area of Ac. 1.085 dec. from the land owners with a total cost of Rs. 10,87,040.00 vide letter No. 42782/HUD dated 6.11.2002. The decision was taken realizing the long -standing difficulties faced by the residents of Mahanadi Vihar and its nearby areas, which remain totally inundated in water not only during the rainy season but also throughout the year, as there was no drainage system for discharge of storm and wastewater in those areas. Accordingly, the Cuttack Municipal Corporation authorities submitted proposal for acquisition of land. While the matter stood thus, the petitioners approached this Court in W.P.(C) No. 4471/2003 and after disposal of the aforesaid Writ Petition, the petitioners filed representation on 27.8.2003 enclosing copy of the order passed in W.P.(C) No. 4471/2003 before the Collector, Cuttack -opposite party No. 2 with a prayer to enquire into the matter thoroughly and prohibit the Cuttack Municipal Corporation from acquiring private lands for construction of road in the guise of drain though there was alternative way for discharge of accumulated water from the Mahanadi Vihar areas. The said representation was forwarded to the Secretary, C.D.A., Cuttack and the Cuttack Municipal Authorities. The Cuttack Municipal Authorities replied vide their Letter No. 3335 dated 17.12.2003 that the plan and drawing in connection with construction of road and drainage in question have been prepared by the technical committee comprising of the Superintending Engineer, Public Health, Cuttack, Planning Member, C.D.A., Cuttack and the Assistant Engineer, Cuttack Municipal Corporation, Cuttack. The Committee, after considering the geographical details of the area, opined that the alternative way suggested by the Counsel for the petitioners for discharge of accumulated water from Mahanadi Vihar was not feasible and accordingly, a report was sent to the Government in Revenue Department vide letter No. 1516 dated 29.12.2003. According to the Learned Counsel for opposite parties, a conscious decision was taken looking into the condition of Mahanadi Vihar, which remains inundated with water during rainy season and construction of drain is absolutely necessary and delay has been caused due to various representations and Writ Petition filed by the petitioners. The Learned Counsel for the opposite parties justifying their action in issuing the Notification under Section 4(1) coupled with Section 17(4) of the Act, which was published in Extraordinary Gazette No. 153 dated 29.1.2004 and the subsequent notices issued by opposite party No. 3 to the concerned land owners basing on the R.O.R. which were duly served on them.