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2016 DIGILAW 985 (ORI)

Pruthiraj Patel v. State of Orissa

2016-10-27

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. The writ petition is for issuance of direction upon opposite parties to acquire their land which has been submerged due to construction of M.I. Project and accordingly paid compensation in lieu thereof. 2. Brief facts of the case of the petitioners is that the they hail from economically backward family and assailing the action of the State authorities in not considering their cases since 1997 onwards with regard to acquisition of land on payment of compensation as their Rayati land have been submerged in the reservoir i.e., M.I. Project, Bijarakata and due to that action life and livelihood of the petitioners has been infringed by the State. 3. It has been submitted that the petitioners are belonging to village Banjari under Loisingha Block in the district of Bolangir and their main source of living is agriculture. They are Royati land owners in respect of Khata No.26, Plot No. 691, area A.0.52 decs, Plot No.693, area A.0.83 decs, plot No.686, area A.2.00, Plot No.682, area A.2.36 decs., Plot No.733, area A.0.05 decs. and Plot No.621, area A.0.35 decs. in total A.6.11 decs. The said land situates in mauza-Banjari. 4. The Irrigation and Water Resources Department after preparing the plan, decided to construct Project known as Bijarakata M.I. Project in village Banjari and accordingly plan was prepared and the same was approved in the year 1993-94, it was completed in the year 1997. Due to construction of the aforesaid M.I. Project at village Banjari the private Royati land belonging to the petitioners and others were submerged in the reservoir and as such the petitioners could not be able to cultivate and as such earn their livelihood. 5. The petitioners had approached before the competent authority but till date no decision has been taken. This Court while entertaining the writ petition has issued notice upon opposite parties way back on 8.11.2000 but no counter affidavit has been filed. 6. This Court after taking into consideration the fact that the counter affidavit has not been filed in spite of lapse of about 16 years and since the matter pertains to the question of compensation in lieu of land having not been utilized by the petitioners, due communication of the opposite parties was made, hence thought it proper to dispose of the writ petition on the basis of material available on record. 7. 7. There is no dispute about the fact that the Land Acquisition Act has been incorporated by the Parliament in order to acquire the land for the public purpose. It is also not in dispute that the procedure has been laid down in the statute known as Land Acquisition Act, 1894 (pre-amended) and as such the competent authority is supposed to acquire the land by resorting the statutory provision otherwise it will be said that action of the authorities is arbitrary and without any authority of law. 8. In the present case, the Government has approved for construction of M.I. Project for making the reservoir by the irrigation and Water Resources Department of the State which is admittedly for public purpose and due to execution and completion of the construction work, the land of the petitioners have been submerged in the Reservoir. The petitioners being the cultivators of the land which is the main source of livelihood and when the land has been submerged in course of construction of reservoir without making any payment of compensation or without resorting any acquisition process, they have approached the authority for redressal of their grievance. Considering their grievance, the Executive Engineer concerned has made a communication way back on 12.9.1997 by making communication to the Land Acquisition Officer by requesting to start the land acquisition proceeding for acquisition of the land in question and at emergency clause under Section 17(4) of the Land Acquisition Notification and Draft declaration under Section 6(1) of the Act as the lands are urgently required for completion of the project. However, no such proceeding has been initiated by the competent authority and without initiation of acquisition process, the said project has been approved and the construction of reservoir has completed in the year 1997. 9. This Court taking note of the judgment rendered in the case of Bandaku Majhi and others vrs. State of Orissa and others reported in 83(1997) C.L.T. 264 and almost in the similar facts and circumstances this Court has passed order deprecating the action of the State authorities by observing at para-4 which is being reproduced herein below :- “4. In a welfare state a citizen looks up to the authorities to get a fair deal. The State authorities have to function within the framework and parameters of law. In a welfare state a citizen looks up to the authorities to get a fair deal. The State authorities have to function within the framework and parameters of law. They are not entitled to take law unto their own hands or to use it as a tool to harass a citizen. In a democratic set-up a State action has to be adjudged with the touchstone of fairness and non-arbitrariness. In the instant case, if the averments are accepted to be true, the action of the State is not only unfair and highhanded but rings the death knell of democracy which our Constitutional fathers dearly threshed. It is an abortive attempt to defile the quintessence of the rights of a citizen with consummate skill and demonic dexterity.” And thereafter taking into consideration, the facts and circumstances of the case, directions have been passed as would be evident from para-7 of the judgment which is being reproduced herein below:- “7. Taking the entire gamut of facts into consideration and the unhappy scenario, we direct as follows:- a. the opposite party No.2, the Collector, Bolangir shall find out after hearing the petitioners if the land as mentioned in the land schedule in paragraph 8 of the writ application belong to the petitioners; b. after being satisfied with regard to the ownership of the petitioners, the Collector would enquire whether the said land has been submerged due to construction of the reservoir in question; c. if the answer to the aforesaid two queries are in the affirmative, he should pay interim compensation at the rate of Rs.20,000/- per acre which shall be deducted while disbursing compensation after final assessment; d. the aforementioned exercise should be completed within six weeks from today; and e. the final assessment, if required, shall be completed within a period of six months from today.” In another judgment passed by this Court in the case of Bhagaban Behera and two others vrs. Central Institute of Fresh Water Aqua-Culture and three others reported in 2009 (II) OLR 148 , taking the similar view, the Division Bench of this Court after taking into consideration the various judgment of the Hon’ble Supreme Court has been pleased to hold at para-10 and 11 which is being reproduced herein below:- “10. Central Institute of Fresh Water Aqua-Culture and three others reported in 2009 (II) OLR 148 , taking the similar view, the Division Bench of this Court after taking into consideration the various judgment of the Hon’ble Supreme Court has been pleased to hold at para-10 and 11 which is being reproduced herein below:- “10. Thus, where there is utter lack of legal authority for deprivation of a person of its property by the State Authority, the Court must exercise its jurisdiction to get possession of the land restored or must ensure that compensation is paid to him. (Vide State of U.P. & Ors. Vs. Manohar, AIR 2005 SC 488 ; and Ashok Kumar and Anr. Vs. State of U.P. & Ors., AIR 2005 All 44 ). 11. In view of the above, the writ petition succeeds and is allowed. The opposite parties are directed either to restore the possession of the land or pay compensation. Therefore, in such a fact situation as the petitioners have been dispossessed of their valuable right over the land with utter disregard of the constitutional mandate, we direct the opposite parties to pay compensation to them or restore possession of the land to them within a period of three months from the date of receipt of copy of this order. The District Collector, Puri is directed to ensure compliance of this order within the aforesaid stipulated period.” 10. Applying the ratio of the judgment rendered in the case referred hereinabove, this writ petition is also being disposed of by issuing following directions:- (i) The Land Acquisition Officer, Bolangir will commence an enquiry to ascertain as to whether the land which is the subject matter of this writ petition belongs to the writ petitioners or not; (ii) after being satisfied with regard to the ownership of the petitioners, the Land Acquisition Officer would enquire as to whether the said land has been submerged due to construction of the reservoir in question or not; (iii) if the answer of the aforesaid two queries are affirmative, he shall calculate the amount of compensation and submit a report to the Secretary, Irrigation and Water Resources Department, Govt. of Orissa; (iv) the Secretary, Irrigation and Water Resources Department, Govt. of Odisha shall immediately make available the appropriate fund for its disbursement in favour of the petitioners. of Orissa; (iv) the Secretary, Irrigation and Water Resources Department, Govt. of Odisha shall immediately make available the appropriate fund for its disbursement in favour of the petitioners. The aforesaid exercise should be completed within 12 weeks from the date of receipt of copy of this order. With this observation and direction, the writ petition stands disposed of.