PRASANNA KUMAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE two petitions are heard together as they involve common questions of law and fact, and are disposed of by this judgment.

(2.) O . J. C. 81 of 1955 was tiled by 41 petitioners on 24 -2 -1955, and O. J. C. 152 of 1955 was filed by 48 petitioners on 2 -5 -55. The petitioners in both the applications are residents of village Harinikuli, Chaumukha, Dagara, Nagudi, Saranjapur, Naighati Pakundi, Jamukunda, Manikisimulia, Jugadihand Badasaha in the district of Balasore bordering on the western flank of the river Subarnarekha at its lowest reach before it falls into the Bay of Bengal. These applications are filed under Article 228 of the Constitution praying for the issue of a writ in the nature of mandamus directing the opposite party, the State of Orissa, to refrain from proceeding with the land acquisition proceedings as the notification issued by the Government under Section 4, read with Section 17(4), Land Acquisition Act, is ultra vires, illegal and without jurisdiction, from taking possession of the land sought to be acquired before an award is passed, from carrying out the contemplated project of diverting the water of Subaranarekha through Amchua cut and from cutting the sand -hills existing in the area shown as 'A -B' in the map, Annexure A, filed along with the petitions.

(3.) AS already stated, O. J. C. 81 of 1855, was filed on 24 -2 -1955, in which it was alleged that a notification made by the Government of Orissa under Section 4, Land Acquisition Act, and read with Section 17(4) of the said Act which comprised homestead, lands was illegal and without jurisdiction. Perhaps realising, after filing of this application, that the said notification was Illegal the Government without withdrawing the entire notification and issuing fresh ones, issued another notification No. 2368 -XVII -28/55, dated 28 -3 -55 withdrawing partially about 48.74 acres of homestead lands comprised in plot numbers mentioned in the said notification from the operation of the notification of the Government of Orissa, Revenue Department, No. 610 -XVII -28/55 -Dev, dated 25 -1 -55. It is after the issue of this notification, the opposite party then issued another notification, under Section 4, Land Acquisition Act, No. 2584 -XVII -28/55, dated 1 -4 -55 in respect of this area of the homestead lands in which Section 5A was made applicable to the proceedings.