Dismissed

Abhay Ch. Jena v. State

Orissa HC3 Oct 2024OJC/13266/2001

Case brief

AI extract

What is this about?

A High Court dismissed a writ petition filed by legal heirs claiming alternative land allotment and compensation for land purchased after a Section 4 notification. The court held the sale deed was void ab initio and the vendor had already received compensation, rejecting claims based on subsequent judgments.

What did the court decide?

Writ petition dismissed; claim for alternative land allotment and payment of compensation rejected.

Abhay Ch. Jena Vs State — Land Acquisition | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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O.J.C. No.13266 of 2001

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1. Abhay Charan Jena (since deceased represented by LRs)

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1(a). Rajalaxmi Rout, aged about 66 years

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1(b). Choudhury Abilash Jena, aged about 40 years

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1(c). Dr. Anindita Jena, aged about 37 years, W/o- Mrinal Kumar Mohapatra, Plot No.4C/1419, Sector 9, CDA, PS- Markat Nagar, DistCuttack

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1(d). Biswajita Jena, aged about 35 years

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Petitioner No.1(a) is the Widow, 1(b) is the Son and 1(c) & 1(d) are the daughters of Late Abhay Charan Jena.

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Petitioner No.1(a), 1(b) & 1(d) reside at Plot No.C/7, Sector-7, CDA, P.S. Markat Nagar, Dist- Cuttack.

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…Petitioners

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-Versus-

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State of Orissa , Represented by Secretary to Government of Orissa, Urban Development Department, Secretariat Building, Bhubaneswar, Dist- Khurda

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Cuttack Development Authority, Represented by its Secretary, Arunoday Market, Cuttack-12

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O.J.C. No.13266 of 2001 Page 1 of 17

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Collector, Cuttack , At- Cuttack, PO- Chandini Chowk, Town/Munsif/Dist- Cuttack

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…Opposite Parties

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Advocates appeared in the case:

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For the Petitioners : Mr. S.S. Rao, Senior Advocate For Opposite Parties : Mr. J.P. Patnaik, Government Advocate for State Mr. Dayananda Mohapatra, Advocate for Cuttack Development Authority

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 03.10.2024

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Chakradhari Sharan Singh, CJ.

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Certain foundational admitted facts crucial for the present

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adjudication are being briefly noted, to begin with, which are as under;

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A notification dated 25.07.1983 under Section 4(1) of the Land Acquisition Act, 1894 (in short ‘the LA Act’) was issued by the State Government of Odisha in the official gazette for acquisition of

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O.J.C. No.13266 of 2001 Page 2 of 17

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land including Plot No.59 under Khata No.103 of Mouza Bidyadharpur admeasuring Ac.7.92 decimal which was recorded in the name of one Godabarish Nayak.

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It is the petitioners’ case that the original writ petitioner Abhaya Charan Jena since deceased had purchased a part of the said plot to the extent of Ac.0.81 decimal through a Registered Sale Deed bearing RSD No.5044 dated 29.09.1983, i.e., after the publication of the notification under Section 4(1) of the LA Act. A notification under Section 6(1) of the LA Act was later published on 18.10.1984.

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The petitioner filed the present writ petition with the following

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prayer:

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“(i) Issue a writ of ‘Mandamus’ directing the O.P. No.1 to pay compensation along with interest to the petitioner for acquisition of land and Opp. Party No.2 to provide a ‘C’ category plot in Sector-8 of Bidanasi area, Cuttack town without any extra financial burden.”

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It is pertinent to mention that in the pleadings in the writ petition, the petitioner questioned the legality of the notification dated 18.10.1984 in the writ petition filed in 2001 on the ground that the acquisition proceeding was not for the benefit of public rather the opposite parties had acquired the said land to derive optimum profit out

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O.J.C. No.13266 of 2001 Page 3 of 17

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of the so-called housing scheme at the cost of the poor persons like the petitioners. It has been pleaded in the writ petition that the said notification under Section 4(1) of the LA Act was against the principles of social justice and as such violative of Articles 14 and 300 A of the Constitution of India.

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Reference has been made in the writ petition regarding challenge made to a similar notification under LA Act dated 25.07.1983 before this Court in OJC No.2731 of 1988 wherein, this Court by an order dated 04.05.1994 had directed the Cuttack Development Authority (CDA)—opposite party No.2 to allot each of the petitioners of that case a plot of land of category ‘C’ and ‘D’; Category ‘C’ for those who had 2 Gunths or more of land which had been acquired, and Category ‘D’ in respect of the rest; at a price which was prevalent on the date of notification under Section 4(1) of the LA Act.

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After pronouncement of the said decision in 1994, it has been asserted in the writ petition that on the ground of parity, the petitioners had been approaching the CDA for allotting a ‘C’ category plot in the light of this Court’s aforesaid decision dated 04.05.1994. The original

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O.J.C. No.13266 of 2001 Page 4 of 17

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petitioner claimed to be a landless person and according to him, the only piece of land which he possessed had been taken over by the CDA without payment of any compensation.

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It is also the petitioners’ case that the original petitioner had submitted so many representations for allotting ‘C’ category plot in his favour in Sector-8 of Bidanansi area but, the CDA was sitting tight over the matter. The latest representation was filed on 06.07.2000, which has been brought on record by way of Annexure-1 to the writ petition. It is also noticeable that after completion of the acquisition proceeding, the entire land of plot No.59 had been handed over to the CDA on 25.04.1997.

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Without looking into any pleadings on record other than those in the writ petition, it is evident that the petitioner, on the strength of having purchased the land from his vendor, Godabarish Nayak in 1983, based his claim for allotment of a plot and payment of compensation. He did not raise any claim against the process of acquisition nor did he raise any grievance concerning non-payment of the amount of compensation consequent upon acquisition of land purchased by him after the notification 4(1) of the LA Act. It is also evident from the

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O.J.C. No.13266 of 2001 Page 5 of 17

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petitioner’s own case that he raised such claims because of an order passed by this Court on 04.05.1994 in relation to another acquisition proceeding in OJC No.2731 of 1988, seven years thereafter, in 2001.

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The petitioner claimed in the writ petition that he had been approaching the authorities by making representations for allotment of piece of land in ‘C’ category. The pleadings, however, do not refer to any such representation except the one dated 06.07.2000 (Annexure-1) shown to have been received in the Office of the CDA on 12.12.2000, if the genuineness of Annexure-1 is to be believed.

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The statement that the petitioner had been approaching the CDA as asserted in paragraph 7 of the writ petition, without referring

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to any representation, in the Court’s opinion, appears to be false. Further, the subject of the representation reads as under:

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“Sub: Sanction of a piece of land of C-Category in Sector-8 against acquisition of land of Ac.0.81 dec, in Khata No.103, Plot No.60, Mouja- Bidyadharpur, Cuttack.”

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Apparently thus, the petitioner had not claimed any

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compensation anywhere against acquisition of the land in question

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O.J.C. No.13266 of 2001 Page 6 of 17

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except by filing the present writ petition on 04.10.2001 before this Court.

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Mr. S.S. Rao, learned Senior Counsel appearing on behalf of the petitioners has referred to prevaricating stands taken by the CDA and the Collector, Cuttack in their affidavits on the point of denying the petitioners’ entitlement for allotment of plot based on this Court’s judgment dated 04.05.1994 as also on the point of acquisition of land. He has also referred to various orders passed by this Court in the present writ proceeding in view of the averments made in the counter affidavits and other pleadings on behalf of the opposite parties. He has further submitted that in the counter affidavit filed by the CDA, the petitioner’s claim for allotment of plot was denied in the light of subsequent decision of this Court in W.P.(C) No.3474 of 2005 wherein the prayer for allotment of alternative land was not accepted. In the said counter affidavit, the factum of acquisition of land in question was not disputed. He accordingly contends that sixteen years after filing of the writ petition, a submission was made before this Court by learned counsel appearing on behalf of the CDA on 25.04.2017 that the CDA did not require the land any longer and steps were taken to de-notify

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O.J.C. No.13266 of 2001 Page 7 of 17

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the petitioner’s land from acquisition. The adjournments were sought on behalf of the CDA and granted by this Court for finalizing withdrawal of acquisition proceeding.

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A compliance affidavit was later filed on 16.03.2024 by opposite party No.3 stating therein that upon survey, it was found that Ac.7.32 decimal of plot No.59 was handed over to CDA on 25.04.1997 by the Land Acquisition Officer. Balance portion of 0.60 decimal out of plot No.59 was acquired by the State Government for which a notification was issued on 27.02.1984 under Section 4(1) of the LA Act followed by declaration under Section 6(1) of the LA Act under notification dated 08.06.1987 for City Protective Embankment Project of Irrigation Department, Government of Odisha and the said acquired land of Ac 0.60 decimal is now part of embankment road.

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Mr. Rao, learned Senior Counsel has submitted that yet another stand has been taken in the affidavit filed on behalf of the Collector, Cuttack on 28.03.2024 indicating that Section 4 notification was issued on 25.07.1983 and the petitioner had purchased the land on 27.02.1984. Mr. Rao has submitted that the notification under Section 4(1) of the LA Act is only an expression of intention to acquire the

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O.J.C. No.13266 of 2001 Page 8 of 17

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land and the land stands acquired only after notification under Section 6(1) of the LA Act. He has accordingly submitted that as the opposite parties have not paid any compensation amount to the petitioners against acquisition of their land, the petitioners are entitled to compensation in accordance with law.

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An Interlocutory Application, being I.A. No.15 of 2024 filed on 13.05.2024 in this case seeking amendment in the writ petition, has been dismissed by an order dated 19.09.2024, the same being not in accordance with the requirements made under Rule-3 of Chapter-VI, Part-II of the Rules of the High Court of Orissa, 1948. The said application was filed bringing on record photostat copies of the certified copies of the communications made by the original petitioner addressed to the Secretary, Cuttack Development Authority dated 02.05.1984 communicating purchase of the land in question from the vendor and subsequent request made to the Land Acquisition Officer, Cuttack on 08.03.1990 for payment of compensation. A Photostat copy of another document dated 21.05.1999 has been brought on record addressed to the Secretary, CDA for allotment of land.

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O.J.C. No.13266 of 2001 Page 9 of 17

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In view of several pleadings/counter pleadings/rejoinders and particularly, because new facts were pleaded in the rejoinder affidavit filed on behalf of the petitioner, a counter affidavit has been filed by the Collector and District Magistrate, Cuttack on 28.03.2024 dealing with various contentions raised by the petitioner. It has been stated in paragraphs 9 and 10 of the affidavit as under:

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“9. xxx. The admitted fact is that the land purchased by the petitioner in his sale deed (Annexure-C/3) dt. 20.09.1983 was already acquired by the State Govt. under the LA Act, 1894 by virtue of Gazette notification (Annexure-D/3) for Bidanasi Triangular Development project. Thus it is clear that, the sale deed of the petitioner is dt.20.09.1983 whereas much prior to the same land was acquired by the State Govt. on 25.07.1983. The petitioner has admitted the same in the writ petition itself. The net effect is that the sale deed of the petitioner has been executed 55 days after the land acquisition. Therefore such sale deed (Annexure-C/3) which was executed by the so called land owners Godabarish Nayak and others after acquisition of the land by the State Govt. is ab-initio void. At this stage it is pertinent to mention here that the recorded owners of the said Plot No.59, Khata No.103 of Mouza Bidyadharpur pursuant to the land acquisition notification (Annexure-D/3) have also received compensation from the Land Acquisition Officer, Cuttack by putting their signatures in the Land Acquisition Vouchers, copy thereof is annexed hereto as Annexure-F/3. Thus the claim of the petitioner Abhay Charan Jena does not hold true. The aforesaid LA voucher would indicate that all the recorded tenants of Plot No.59, Khata No.103 of Mouza Bidyadharpur including the vendors of the petitioner in his sale deed

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O.J.C. No.13266 of 2001 Page 10 of 17

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(Annexure-C/3) have received the compensation amount from the LA Dept. for acquisition of the land in Plot No.59, Khata No.103 of Mouza Bidyadharpur. This fact is suppressed in the petition.

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10. That as narrated above the petitioner is not entitled to claim any right, title, interest over any portion of Plot No.59, Khata No.103 of Mouza Bidyadharpur on the basis of his sale deed (Annexure-C/3) which came into existence after the land acquisition notification (Annexure-D/3). Therefore such sale deed (AnnexureC/3) was not acted upon and no mutation ROR was issued to the petitioner by Tahasildar on the basis of it.”

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(Underscored for emphasis)

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After having considered the pleadings on record and rival submissions made on behalf of the parties, we are of the view that the present writ petition deserves to be dismissed for the following reasons:-

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(i) The original petitioner filed the writ petition apparently raising a grievance against the opposite parties for not allotting a piece of plot in ‘C’ category in Sector-8, though a prayer has been made in the writ petition for payment of compensation against acquisition. We do not find any cogent and satisfactory material on record to suggest that the petitioner had ever made such claim before filing of the writ petition.

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O.J.C. No.13266 of 2001 Page 11 of 17

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The petitioner, being a purchaser subsequent to the notification under Section 4(1) of the LA Act, cannot question the legality of the said notification and acquisition proceeding on any ground whatsoever for the reason that the sale deed executed in his favour does not confer upon him any title, and at the most he can claim compensation on the basis of the vendor’s title as has been held by the Supreme Court in case of V. Chandrasekaran v. Administrative Officer; (2012) 12 SCC 133 . Paragraph 18 of the said decision directly addresses the issue and it reads as under:

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“18. In view of the above, the law on the issue can be summarised to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title.”

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In case of Union of India v. Shivkumar Bhargava; (1995) 2 SCC 427 , a purchaser subsequent to notification under Section 4(1) of the LA Act had claimed alternative site on the ground that on the date when the acquisition was finalized, he had become the owner by virtue

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of the purchase. The writ petition was allowed by the learned Single

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Judge of Delhi High Court, an intra-court appeal against which was

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O.J.C. No.13266 of 2001 Page 12 of 17

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dismissed on the ground of limitation. An appeal was preferred to the Supreme Court against the orders of the Delhi High Court. Noticing the admitted position that as on the date of notification under Section 4(1) of the Act, the respondent in that case was not the owner of the land, the Supreme Court in no uncertain terms held that the respondent could not be considered to be the owner as on the date of notification under Section 4(1) published in the gazette and he being a subsequent purchaser to the notification could be entitled to claim compensation only on the strength of the sale made in his favour.

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A person who deals with the land subsequent to the notification under Section 4(1) of the LA Act does so at his own peril, held the Supreme Court in case of Pt. Lila Ram v. Union of India; (1975) 2 SCC 547 . In case of V. Chandrasekaran ( supra ), the Supreme Court noticing the decision in case of Sneh Prabha v. State of U.P.; (1996) 7 SCC 426 has reiterated that Section 4 notification gives a notice to the public at large that the land in respect to which it has been issued, is needed for public purpose, and it further points out that there will be “an impediment to anyone to encumber the land

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O.J.C. No.13266 of 2001 Page 13 of 17

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acquired thereunder”. The alienation thereafter does not bind the State or the beneficiary under the acquisition.

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In case of U.P. Jal Nigam, Lucknow v. Kalra Properties (P) Ltd., Lucknow; (1996) 3 SCC 124 , the Supreme Court has ruled that after notification under Section 4(1) is published in the Gazette, any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any right to the property. The observation was made in the light of the fact that the respondent in that case had purchased the land after the notification under Section 4(1) was published. We are conscious of the fact that in case of U.P. Jal Nigam, Lucknow v. Kalra Properties ( supra ), a notification was issued under Sections 4(1) and 17(4) of the LA Act.

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In cases of Ajay Krishan Shinghal v. Union of India; (1996) 10 SCC 721, Mahavir v. Rural Institute, Amravati; (1995) 5 SCC 335, Gian Chand v. Gopala; (1995) 2 SCC 528 and Meera Sahni v. Lieutenant Governor of Delhi; (2008) 9 SCC 177 , law has been clearly laid down that the sale of land after issuance of Section 4 notification is void and the purchaser cannot challenge the acquisition proceedings.

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O.J.C. No.13266 of 2001 Page 14 of 17

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As regards the petitioner’s claim for payment of compensation, he being the purchaser of the land, we have already noticed the specific stand taken by the Collector, Cuttack that the recorded owners of the concerned plot had received compensation from the Land Acquisition Officer, Cuttack. Reliance has been placed on a document by way of annexure (Annexure-F/3). It is also the stand of the opposite parties that no mutation ROR was issued to the petitioner by the Tahasildar based on the said sale deed, which was not acted upon.

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In view of the aforesaid discussions, neither the petitioners’ challenge to the notification under Section 4(1) of the LA Act as pleaded in the writ petition can be sustained nor their claim for payment of compensation can be entertained in the present proceeding in view of the statement made in the affidavit that the amount of compensation for acquisition of the plot in question was paid to the petitioners’ vendor. Further, we do not find any basis to sustain the petitioners’ claim for allotment of a plot which was their main grievance raised in the writ petition.

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O.J.C. No.13266 of 2001 Page 15 of 17

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Secondly, we are of the view that this writ petition deserves to be dismissed also on the ground of delay and laches. As has been noted above, the original petitioner filed the writ petition in 2001 basing his claim, mainly, on an order of this Court passed on 04.05.1994. The explanation for delay given by the petitioner in the writ petition that he had been approaching the authorities for seven years by making representations, in our opinion, is neither genuine nor acceptable to us. The delay itself defeats the right. It is a different matter that we are of the considered view that the petitioners have not been able to establish their rights in support of the relief which they have sought.

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Thirdly, we are also of the view that the original petitioner had not approached this Court with clean hands to make out a case that he had been approaching the authorities by filing representations. A photo copy of the representation dated 06.07.2000 has been brought on record by way of Annexure-1. The said representation is shown to have been received in the Office of the Cuttack Development Authority on 12.12.2000. There is reference to copies of the letters issued earlier. There is no description of the letters earlier issued by the petitioners.

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O.J.C. No.13266 of 2001 Page 16 of 17

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The petitioner thus attempted to explain the delay by stating facts, which, in the Court’s opinion, verge on falsehood.

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Accordingly, this writ petition is dismissed. We were intending to impose cost considering the petitioners’ conduct as noted above, but have restrained ourselves.

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(Chakradhari Sharan Singh) Chief Justice

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(Savitri Ratho) Judge

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S. Behera

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Signature Not Verified

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Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Oct-2024 18:15:10

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O.J.C. No.13266 of 2001 Page 17 of 17

Abhay Ch. Jena v. State

Case brief

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Abhay Ch. Jena v. State

Case brief

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