Afr vs Competent Authority &
2023 Latest Caselaw 5091 Ori

                 ORISSA HIGH COURT: CUTTACK

                       W.P(C) NO. 39545 OF 2021

      In the matter of an application under Articles 226 and
      227 of the Constitution of India.
                             ---------------

AFR Kuntala Nayak & Ors. ..... Petitioners

-Versus-

Competent Authority & Land Acquisition Officer, Special Land Acquisition Cell (NH) OR-II, N.H. No.5, Bhubaneswar & Ors. ..... Opp. Parties

For Petitioners : M/s. T.K. Mishra, P.K. Lenka and P. Bastia, Advocates

For Opp. Parties : M/s. Ajit Patnaik & M.R. Padhi, Advocates [O.P. No.1]

M/s. G.M. Rath, A.S. Mohanty and S. Jena, Advocates, [O.Ps. No.2-25]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE M.S. RAMAN

DECIDED ON : 04.05.2023 // 2 //

DR. B.R. SARANGI,J. The petitioners, who were opposite parties

no.22 to 27 before the Principal Civil Court of the

Original Jurisdiction, namely, District Judge, Cuttack,

by means of this writ petition, seek to quash the

judgment dated 30.11.2021 passed in NH Reference

Misc. Case No.2 of 2018, by which learned District

Judge, Cuttack has disposed of the said reference case

with the observation that opposite parties no.1 to 21

therein are entitled to receive compensation in respect of

the land acquired by the N.H. Authority under Reference

and the petitioners are not entitled to receive any

compensation in respect of the land acquired under the

Reference.

2. The factual matrix of the case, in brief, is that

plot No.1225, Ac.2.110 dec., Kisam-'Jalasaya-2' was

originally recorded in Khata No.274 of Mouza-Gopalpur

in the names of Jagannath Behera, Fagumani Behera,

Kartik Behera and Babaji Behera, all are sons of

Gandharb Behera of Gopalpur under 'stitiban' status.

Out of Ac.2.110 dec. from Plot No.1225, an area of

Ac.0.265 dec. was acquired for expansion of National // 3 //

Highway No.5. An inquiry was made by the Amin

appointed by opposite party no.1 and in his report it has

been informed that apart from Babaji Behera, all other

recorded tenants are dead and they have left behind

them their legal heirs and successors described as

opposite parties no.3 to 25. Opposite party no.3

Nishamani Behera, W/o Late Jagannath Behera died

and her name was deleted from the cause title of the

petition since other legal heirs of their branch were

already on record. During pendency of the Reference

case, opposite party no.20, namely, Basanta Behera died

and his legal heirs were substituted.

2.1 Notices were issued to the recorded tenants

and their successors to appear before the authority.

Petitioner no.2-Maheswar Nayak filed a petition on

behalf of himself and other petitioners, namely, Kuntala

Nayak, Kailash Chandra Nayak, Meera Nayak, Itishri

Nayak and Uma Bewa on 16.09.2017 with regard to

pendency of some civil litigations in respect of the lands

acquired. Since objections were raised by the petitioners,

who were opposite parties no. 22 to 27 before the court // 4 //

below, claiming compensation in respect of the acquired

land, disputing the entitlement of opposite parties no.2

to 22 therein, the Competent Authority referred the

matter to the Principal Civil Court of Original

Jurisdiction, i.e., the District Judge, Cuttack under Sub-

section (4) of Sec.3H for a decision of apportionment of

the compensation amount of the acquired land after

deciding the right and title of the case land. Against such

Reference of the Competent Authority, opposite party

no.3-Nisamani Behera & others preferred W.P.(C)

No.27431 of 2017 and this Court, vide order dated

22.7.2021, disposed of the said writ petition directing the

learned District Judge, Cuttack to dispose of the

Reference case as expeditiously as possible and in any

event not later than six months from the date of the

order.

2.2 Opposite parties no.2 to 22 in the Reference

case filed their objection and contended that the National

Highway Authorities acquired the land out of Plot

No.1225 (sabik) corresponding to 1973 Settlement Plot

No.1898 measuring an area Ac. 2.710 dec. under Khata // 5 //

No.443 of Village-Pratapnagari. The said plot originally

belonged to the predecessors of the petitioners and it was

recorded in the name of Late Biswanath Nayak, who sold

the properties covered under Hal Khata No.1858 in

favour of Kartik Behera, Jagannath Behera, Babaji

Behera and Fagumani Behera, the predecessors of the

opposite parties on 18.6.1975 and accordingly, opposite

party no.2 and the predecessors of other opposite parties

remained in exclusive possession of their purchased

properties i.e. Ac. 2.710 dec. out of Plot No.1851. After

the sale, Biswanath Nayak, the predecessor of the

petitioners was not in possession of any portion of the

land sold. It is also contended that by virtue of their

purchase, vide Regd. Sale Deed dated 18.6.1975,

opposite party no.2 and the predecessors of opposite

parties no.2 to 22 acquired exclusive right, title, interest

and possession over the Plot No.1858 measuring an area

Ac.2.710 dec. It is also contended that during the

consolidation operation, the area of the purchased land

remained intact and there was no enhancement of its

area either in the ROR or in the village map. It is also // 6 //

contended that the petitioners have no right, title,

interest and possession over any portion of the land

acquired by the N.H. Authorities and, as such, they are

not entitled for any compensation.

2.3 The petitioners filed their objection contending

that Jagannath Behera, Fagumani Behera, Kartik

Behera and Babaji Charan Behera, as Plaintiffs, had filed

Title Suit No. 15/2001 in the court of learned Civil Judge

(Senior Division), 1st Court, Cuttack in respect of Plot

No.1858 measuring an area Ac.0.38 dec. claiming to be

in possession of Ac.3.09 dec. instead of Ac.2.71 dec. and

they are in adverse possession of an area Ac.0.38 dec.

bearing Hal Plot No.1858 and claimed reliefs for

declaration of their right, title and interest, confirmation

of possession and for other reliefs and the aforesaid suit

was dismissed on 29.8.2007. It is also contended that

Rabindranath Nayak, as Plaintiff, had filed Civil Suit

No.138/2008 in the Court of learned Civil Judge (Senior

Division), 1st Court, Cuttack for a decree for

measurement and demarcation of the disputed property

and for declaration that he is the owner in respect of the // 7 //

said Schedule 'C' property i.e. an area of Ac.0.36 dec. out

of Hal Consolidation Plot Nos. 1224, 1225, 1226, 1229,

1232, 1233, 1234 and 1235 described in Schedule- 'C" of

the plaint. It is also contended that the present disputed

property bearing Khata No.753, Plot No.226, area

Ac.0.12 dec. has been shown under Lot No.III of

Schedule-'C' of Civil Suit No. 138 of 2008 and the said

Schedule-'C' is corresponding to Hal Khata No.443, Plot

No. 1858, Area Ac.2.71dec. and the said Civil Suit is

pending in the Court of the 1st Additional Civil Judge

(Sr.Dvn.), Cuttack for adjudication. It is also contended

that in Civil Suit No.138/2008, the petitioners, as

Plaintiffs have claimed an area measuring Ac.0.13 dec.

out of Ac.2.11 dec. and filed objection before opposite

party no.1 claiming release of the compensation amount

to that extent of the land in their favour. It is also

contended that out of the acquired land of Ac.0.265 dec.

by the N.H. Authorities, the said area of Ac.0.130dec.

has also been acquired and, therefore, opposite parties

no.2 to 22 therein are entitled to compensation for their

land to the extent of Ac. 0.135dec. out of Ac. 0.265 dec.

// 8 //

and the present petitioners are entitled to receive

compensation for the acquired land of Ac.0.130dec out of

Ac.0.265 dec.

2.4 It is further contended that initially the

disputed land along with other lands stood recorded in

the names of Sananda Swain & others as per the

Settlement ROR of 1931. The recorded tenants on

20.8.1947 sold the area of Ac.3.54 dec. by virtue of Regd.

Sale Deed in favour of Biswanath Nayak, the predecessor

of the petitioners. It is also contended that in 1973

Settlement, the land purchased by Biswanath Nayak was

recorded in his name and the ROR was issued in his

favour in respect of the land measuring an area of

Ac.2.71 dec. It is also contended that Biswanath Nayak

during his life time had sold some lands out of the

purchased land of Ac.3.54dec. and he was in possession

of Ac.3.07 dec. of land, but wrongly in 1973 Settlement

the land to the extent of Ac.2.71 dec. out of the said

purchased land was settled in his name which is not

correct. It is also contended that on 18.6.1975,

Biswanath Nayak, by virtue of Regd. Deed of Sale, sold // 9 //

the entire Ac.2.71 dec. of land to Babaji Behera (opposite

party no.2) and the predecessors of opposite parties no.3

to 22 and remained in possession of Ac.0.36 dec. of land

he had purchased. The Consolidation ROR also reveals

that the land measuring an area of Ac.2.71 dec. was

recorded in the names of opposite party no.2 and the

predecessors of opposite parties no.3 to 22. It is further

contended that out of Ac.0.36dec., the N.H. Authority

acquired Ac. 0.130 dec. and, as such, the successors of

Biswanath Nayak are entitled to receive compensation of

the land acquired by the N.H. Authority i.e. Ac.0.130dec.

2.5. Opposite parties no.2 to 22 in the Reference

case submitted that during the Settlement 1973, plot

No.1858 was recorded in the name of Biswanath Nayak

to the extent of Ac. 2.71 dec. and by virtue of the Regd.

Deed of Sale dated 18.6.1975 executed by said

Biswanath Nayak, the area of the entire plot was

transferred in favour of opposite party no.2 and the

predecessors of opposite parties no.3 to 22. It is

contended that during the consolidation operation, ROR

was prepared in favour of opposite party no.2 and the // 10 //

predecessors of opposite parties no.3 to 22 in respect of

Ac.2.110 dec. It is further contended that neither during

the settlement operation nor during the consolidation

operation any objection was raised from the side of

Biswanath Nayak or his successors-opposite parties. It is

further contended that there is no material to show that

any land measuring an area of Ac.0.35 dec. was ever

available with the petitioners and, as such, there is no

question of acquisition of any land belonging to them.

3. On verification of records, it appears that

initially the disputed land along with other land stood

recorded in the names of Sananda Swain & others, as

per the Settlement ROR of 1931. On 20.8.1947, the

recorded tenants Madhusudhan Swain, Bairagi Swain

and others sold Ac.3.54 dec. land to Biswanath Nayak by

virtue of a Regd. Deed of Sale. During the Settlement of

1973, the said land was recorded in the name of

Biswanath Nayak under Khata No.443, Plot No.1858

measuring an area of Ac.2.71 dec. On 18.6.1975,

Biswanath Nayak executed four Sale Deeds in favour of

opposite party no.2 and the predecessors of opposite // 11 //

parties no.3 to 25 in respect of the entire land of Ac.2.71

dec. After purchasing the said land from Biswanath

Nayak, some lands were sold by opposite party no.2 and

the predecessors of opposite parties no.3 to 25. During

the consolidation operation, ROR was prepared in the

names of Jagannath Behera, Fagumani Behera, Kartik

Behera and Babaji Behera in respect of Plot No.1225 to

the extent of Ac.2.110 dec.

4. The National Highway Authority acquired an

area of Ac.0.265 dec. out of Ac.2.110 dec. from Plot

No.1225. Therefore, it is to be examined whether any

land of the petitioners has been acquired by the National

Highway Authority or whether the petitioners have any

right in respect of any portion of land acquired by the

National Highway Authority?

5. There is no dispute that by virtue of a Regd.

Deed of Sale, opposite party no.2 and the predecessors of

opposite parties no.3 to 25 had purchased an area of

Ac.2.71 dec. of land from Biswanath Nayak on

18.6.1975. It is the case of the petitioners that // 12 //

Biswanath Nayak delivered possession of the land

purchased by opposite party no.2 and the predecessors

of opposite parties no.3 to 25 which extends to Ac.2.71

dec. of land. During the consolidation operation,

deducting the sold area out of Ac. 2.71 dec., Ac. 2.11

dec. was recorded in the names of Jagannath Nayak,

Fagumani Behera, Kartik Behera and Babaji Behera in

consolidation Khata No.274, Plot No.1225. It is also

admitted that the National Highway Authority has

acquired Ac. 0.265 dec. of land out of Plot No.1225 of

Khata No.274 out of Ac.2.11dec.

6. It is contended by the petitioners that though

Ac.2.71 dec. of land was recorded in the name of

Biswanath Nayak in 1973 Settlement, he was in physical

possession of Ac. 3.06 dec. of land and claiming Ac.0.35

dec. of land C.S. No.138/2008 had been filed, which is

pending before the learned Civil Judge, Cuttack and

since out of that Ac.0.35 dec. of land, Ac. 0.130 dec. has

been acquired by National Highway Authority, the

petitioners are entitled to receive compensation against

that extent of land acquired by the N.H. Authority.

// 13 //

If the contention of the petitioners is accepted,

then question arises, where does the excess land of

Ac.0.35 dec. situate? Even if it is admitted that

Biswanath Nayak was in possession of Ac.3.06 dec. of

land at the time of sale, then also it is not possible to

show that out of the entire Ac. 3.06 dec of land, which

portion the sold area of Ac.2.71 dec. appertains. In other

words, it is not specified through map or boundary

description that exactly which portion, out of Ac.3.06

dec. of land, was sold which extends to Ac.2.71dec. It is

also not specified where the excessive land of Ac.0.35

dec. exists. Since the petitioners claim their right over

Ac. 0.130 dec. of land out of the acquired land Ac.0.265

dec., it is incumbent on their part to substantiate that

any portion of land over which they have got right, title,

interest and possession has been acquired by the N.H.

Authority or any land belonging to the petitioners is

included within the area of Ac.0.265 dec. acquired by the

N.H. Authority.

7. Mr. P.K. Lenka, learned counsel appearing for

the petitioners vehemently contended that since C.S.

// 14 //

No.138 of 2008 is pending, the benefit cannot be

extended to opposite parties no.2 to 25.

8. Mr. G.M. Rath, learned counsel appearing for

opposite parties no.2 to 25 vehemently contended that if

area Ac.0.265 dec. has been acquired by the N.H.

Authority, which was purchased by executing sale deed

on 18.06.1975, and since opposite parties no.2 to 25 are

in exclusive possession of the same having right, title,

interest and possession, they are entitled to get

compensation.

9. On perusal of the order dated 30.11.2021

passed by the learned District Judge, Cuttack in N.H.

Reference Misc. Case No.2 of 2018, it is made clear that

since opposite parties no.2 to 25 are in possession of

area Ac.0.265 dec. from out of area Ac.2.110 dec. of Plot

No.1225, the petitioners have no right to claim

compensation determined by the N.H. Authority.

10. Therefore, this Court is of the considered view

that if an area Ac.0.265 dec. from out of the area

Ac.2.110 dec. of Plot No.1225 has been acquired by the // 15 //

N.H. Authority, which belongs to opposite parties no.2 to

25, pursuant to sale deed executed on 18.06.1975 in

their favour, the claim of the petitioners for

disbursement of compensation amount in their favour

does not arise. Thereby, learned District Judge, Cuttack,

after due adjudication and after giving opportunity of

hearing to the parties, has come to a definite conclusion

vide judgment dated 30.11.2021 in N.H. Reference Misc.

Case No.2 of 2018 that opposite parties no.2 to 25 are

entitled to get compensation in respect of the land

acquired by the N.H. Authority under Reference. As a

consequence thereof, the petitioners are not entitled to

get any compensation for the said land.

11. In the above view of the matter, this Court

does not find any error apparent in the judgment dated

30.11.2021 passed by the learned District Judge,

Cuttack in N.H. Reference Misc. Case No.2 of 2018 in

exercise of power under Section 3H(4) of the National

Highways Act, 1956 in resolving the dispute between the

parties.

// 16 //

12. Therefore, the writ petition merits no

consideration and the same is dismissed, but, however,

there shall be no order as to costs.

                                                (DR. B.R. SARANGI)
                                                     JUDGE


M.S. RAMAN, J.           I agree.


                                                    (M.S. RAMAN)
                                                        JUDGE



        Orissa High Court, Cuttack
        The 4th May, 2023, Alok




    ALOK Digitally
           by ALOK
                   signed

    RANJAN RANJAN  SETHY
           Date: 2023.05.10
    SETHY 12:54:16 +05'30'