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2005 DIGILAW 396 (ORI)

Sarojini Praharaj v. State of Orissa

2005-06-24

B.P.DAS, P.K.MOHANTY

body2005
JUDGMENT B. P. DAS, J. : 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 therefore 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 pathces 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 acquisi¬tion 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. 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 contracted 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 Devel¬opment Authority, the opposite parties should not have proceeded with the compulsory acquisition. 3. It is submitted by the learned counsel for the peti¬tioners that as the drain proposed to be excavated is for the purpose of discharging the rainwater, which usually collected within the area of Mahanadi Vihar, the Municipal Authority should construct the drain within Mahanadi Vihar area and not in the area of Kaibalya Vihar by acquiring the lands of the petitioners. In the writ petition, it is further highlighted that when various other parts of Cuttack town, namely, Sutahat, Patapola, Makaraba Sahi, Thoria Sahi etc. remain waterlogged during rainy season and till date no effective steps have been taken for improvement of the drainage system in those areas, there is no reason as to why the Cuttack Municipal Corporation authorities are eager and have preferred to excavate a drain in the area of Kaibalya Vihar and Mahanadi Vihar. The sum and substance of the argument of the learned counsel for the petitioners is that when there was no drainage system in Mahanadi Vihar area for the last 30 years, the opposite parties could have taken recourse to the usual procedure and should not have invoked the emergency power in Section 17(4) of the Act thereby excluding applicability of the usual proce¬dures as laid down in the Act. 4. 4. A counter affidavit has been filed by the Land Acquisi¬tion Officer on behalf of opposite parties 1,2 & 3 indicating therein that on receipt of requisition form 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 noti¬fication 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 Extra-ordinary 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 & District Magistrate, Cut¬tack 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. form 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 waste water in those areas. Accordingly, the Cuttack Municipal Corporation authorities sub¬mitted 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 Collec¬tor, Cuttack-opposite party No.2 with a prayer to enquire into the matter thoroughly and prohibit the Cuttack Municipal Corpora¬tion form acquiring private lands for construction of road in the guise of drain though there was alternative way for discharge of accumulated water form the Mahanadi Vihar areas. The said repre¬sentation 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, Cut¬tack. The said repre¬sentation 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, Cut¬tack. Planning Member, C.D.A., Cuttack and the Assistant Engi¬neer, 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 peti¬tioners for discharge of accumulated water form Mahanadi Vihar was not feasible and accordingly, a report was sent to the Govern¬ment in Revenue Department vide letter No.1516 dated 29.12.2003. According to the learned counsel for opposite parties, a con¬scious 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 Extra-Ordinary Gazette No.153 dated 29.1.2004 and the subse¬quent notices issued by opposite party No.3 to the concerned land owners basing on the R.O.R. which were duly served on them. 5. The C.D.A. authorities in their counter affidavit also took the same plea justifying urgency of excavation of a drain. An intervention application was also filed by the residents of Ananda Vihar stating therein that the basic amenity of a drain¬age system is not available to the inhabitants of Mahanadi Vihar and Ananda Vihar and the acquisition of land is for providing basic civic amenities. According to the intervenors the action of the opposite parties in taking recourse to the emergency Clause is justified and the opposite parties should be allowed to pro¬ceed with the work as early as possible. The contention of the learned counsel for the intervenors gets support form the submis¬sion of the learned counsel for the C.D.A. According to him, Mahanadi Vihar and Ananda Vihar per petuallally rainwater logging by rainwater as well as waste water discharged form the residen¬tial houses throughout the year creating unhealthy and unhygienic atmosphere for the residents of those colonies. 6. The contention of the learned counsel for the intervenors gets support form the submis¬sion of the learned counsel for the C.D.A. According to him, Mahanadi Vihar and Ananda Vihar per petuallally rainwater logging by rainwater as well as waste water discharged form the residen¬tial houses throughout the year creating unhealthy and unhygienic atmosphere for the residents of those colonies. 6. In the aforesaid background of facts, the question that falls for consideration is whether the emergency Clause in Sec¬tion 17(4) of the Act has been rightly invoked or not. 7. Law is well settled that the provisions of Section 17(4) of the Act deprive a person of his statutory right of filing objections and of being heard, and, therefore, are to be resorted to only when the condition precedent to the exercise of the power is fulfilled. Under Section 17(4) of the Act, before the Government can direct that the provisions of Section 5-A of the Act are to be dispensed with, it has to be satisfied that the case is one of extreme urgency. The urgency must be such that the purpose of acquisition cannot brook the period of 30 days for filing objections and the reasonable period of the enquiry, as contemplated under Section 5-A of the Act. (See 50 (1980) C.L.T. 375: Shri Dhobei Sethi v. State of Orissa and another, Shri Santosh Kumar Senapati v. State of Orissa and another. 8. Placing reliance upon the decision of this Court in the case of Sk. Abdul Hamid and another v. The Land Acquisition Collector, Balasore & another* reported in 67 (1989) CLT 659, learned counsel for the petitioners advanced an argument that the case at hand is similar to the said decision where proposal for excavation of a public drain for passage of excess rain water originated in 1985, which was given a shape in the year 1988, and this Court held that the case was not a fit case for application of Section 17(4) of the Act. 9. On perusal of the aforesaid decision and looking into the facts of this case, we are of the considered opinion that the case at hand is totally different form the case of Sk. Abdul Hamid (supra) as relied upon by the learned counsel for the petitioners. 9. On perusal of the aforesaid decision and looking into the facts of this case, we are of the considered opinion that the case at hand is totally different form the case of Sk. Abdul Hamid (supra) as relied upon by the learned counsel for the petitioners. Form the counter affidavit as well as the facts nar¬rated in the present writ petition and the order passed in the previous writ petition filed by the petitioners, we find that though the proposal for excavation of a drain was initiated in the year 2001 due to various representations and writ petitions filed by the petitioners at different point of time, the matter could not be proceeded. This being a project for excavation of drain in order to facilitate discharge of waste and filthy water form some thickly populated areas, any delay in the matter would definitely create further health-hazards in the locality. That too, we do not find anything to indicate that the authorities have proceeded mechanically by invoking the emergency Clause in Section 17(4) of the Act. Form the facts and circumstances of the case, it is crystal clear that the aforesaid action has been taken in the interest of two big settlements in order to provide civic amenities to the residents of those two areas, who are suffering and living in unhygienic condition due to accumulation of filthy and waste water flowing form different courses as well as during rainy season. We are at a loath to accept the argument of the learned counsel for the petitioners that as the drainage system in some other areas of Cuttack town has not yet been done and that too when the Municipal authorities could wait for 30 years for excavation of the drain, there is no urgency in exca¬vating the drain, for which Section 17(4) of the Act should not be pressed into service. The contention of the learned counsel for the petitioners that the drain should be diverted in some other way is also not acceptable to this Court as in the counter affidavit, opposite parties 1 to 3 have stated that the sugges¬tion of the learned counsel for the petitioners was considered by the experts in the field who found the same to be not workable. Ultimately, as we do not find any irregularity in invoking the emergency Clause under Section 17(4) of the Land Acquisition Act by the opposite parties in issuing the notification under Section 4(1) read with Sub-sections (1) and (4) of Section 17 of the Land Acquisition Act, we cannot accede to the prayer of the petitioners. The writ petition is accordingly dismissed. P. K. MOHANTY, J. I agree. Petition dismissed.