Judgment:
I.M. Quddusi, A.C.J.
1. The Petitioners, who are the owners of Plot Nos. 352, 353 & 344 situated in Mouza-Nayapalli (North) now Jayadev Vihar, filed the Instant Writ Petition for a direction to the Opposite Parties to re-transfer & reconvey the land which they were compelled to contribute for implementation of the Scheme No. II in Nayapalli (North) after abandonment of the Scheme or in the alternative to allot equivalent extent of land that was taken in course of implementation of Town Planning Scheme No. II.
2. The Bhubaneswar Development Authority had prepared Town Planning Scheme No. 2 for Nayapalli (North) in exercise of powers conferred under Chapter VI of the Orissa Development Authorities Act, 1982. Para-4 of the Scheme made provision for adequate road network, infrastructural facilities, drainage channel, construction of embankment road on either side of drainage channel. According to the scheme, Nayapalli (North) had a total area of 88.000 acres & out of the said land about 56 acres were reserved for residential plots, Ac.19.00 for laying of roads, Ac.2.700 for construction of drainage channel, Ac.5.783 for providing community facilities & Ac.4.595 for construction of Sewerage treatment plant. The Scheme provided that the owner of each original plot shall primarily be liable to make proportionate contribution in the form of land. The Scheme further provided that each land owner who owns land to the extent of Ac.1.00 is required to contribute 12 per cent of his total land & persons having more than Ac.1.00 land were required to contribute 15% of the original land held by them for execution of the scheme. Pursuant to the same, the Petitioners were compelled to transfer an area of Ac.1.837 decimals. But subsequently the Town Planning Scheme was withdrawn. The contention of the Learned Counsel for the Petitioners is that the Petitioners cannot be deprived of their valuable land which were taken for enforcing the Town Planning Scheme No. 2 after the scheme was withdrawn & depriving the Petitioners of their valuable property rs violative of the constitutional right guaranteed under Article 300-A of the Constitution. The Petitioners moved an application on 19.5.1988 before the Bhubaneswar Development Authority, Opp.Party No. 2 for grant of permissio'n to subdivide their land bearing Plot Nos.352,353 & 344, Khata No. 170 corresponding to Sabik Plot Nos. 862,867 & 869 in Mouza-Jayadev Vihar for residential purpose enclosing therein 6 numbers of blue print copies of layout plan. The Planning Member, Bhubaneswar Development Authority sent a letter dated 29.1.1991 to the Petitioners indicating therein to submit 8 copies of layout plan conforming to the Draft Comprehensive Development plan & demarcating clearly the provisions of drainage alignment, roads, & plots for further action at their end. The said letter was sent on the basis of the letter of the Joint Secretary to Government-cum-Director, Housing, Government of Orissa dated 29.1.1991. It is also pertinent to mention here that the Bhubaneswar Development Authority issued a notice in respect of Draft Planning Scheme No. 2 for Nayapally only in the news paper on 27.2.1993 in which it was inter alia mentioned that any person who is injuriously affected by the above scheme being entitled to claim damages in accordance with Section 65 of the Orissa Development Authorities Act, 1982 should details of the claim to the Valuation Officer within 3 months of the date of publication of this notification with supporting documents & evidence. The Petitioner, seeing no other way prepared, & submitted the layout plan according to the aforesaid direction given adhering to the Draft Comprehensive Development Plan & demarcating clearly the drainage alignment of 30 feet width & each side embankment roads of 25 feet width apart from the internal roads of 30 feet widths & only on submission of such plan, the Planning Member approved the same with the following directions.
(i) The Road network including the drainage channel may be demarcated on the ground & laid out at least up to the formation level.
(ii) The area earmarked as road & drainage channel may be gifted to the Bhubaneswar Municipality free of cost.
3. The Petitioners had no way except to follow the conditions & ultimately they had to give the area earmarked as road as directed by the Bhubaneswar Development Authority. Therefore, the Petitioner executed three numbers of Gift Deeds in favour of Bhubaneswar Municipality for a total area of Ac.2.861 decimals. It is to be noticed here that according to the Scheme, a land owner who was having one acre of land was to contribute 12% of the total area & he who was having more than one acre was to contribute 15% of the total area for the execution of Town Planning Scheme. The Petitioners who had a total area of Ac.9.441 decimals of land in aforesaid area was to contribute Ac.1.416 decimals of land @ 15% of the total land but they were compelled to prepare the layout plan with 30 feet wide internal road apart from 80 feet wide drain & its embankment road. From the layout plan, it appears that the width of drain & its embankment roads is 80 feet & the length of the drain is 1025 feet which covers an area of Ac.1.837 decimals of land & the Petitioner was forced to free gift the same in excess of 15% of the total land under the influence of the B.DAThe gift deeds were executed by the Petitioner in favour of Bhubaneswar Municipality not voluntarily but as per the letter of BDA which was to be complied as there was a threat that failing to comply with the same, his layout plan would not be sanctioned.
4. The Petitioners moved several representations & the record became bulky. But they were not given any alternative land in lieu of the excess land. It is not necessary to go further as the noting of the Government in the above record is liable to be perused.
The noting of the Additional Land Officer in the file is relevant. Paragraphs- v & vi thereof are quoted below:
v) Sri Das had further represented that patch of land measuring Ac.5.702 swx. Pertaining to Plot No. 688/2656, Khata No. 1427 in Mz.Jaydev Vihar is remaining unallotted which may be allotted to him in liey of his private land measuring Ac.1.837 dec. utilized for different development purposes under Town Planning Scheme Nayapalli North-M & Ac.0.191 dec (Balance land after adjustment as proposed above, of Ac.0.410 dec. from the Ac.0.601 dec. land claimed) given to RBI for staff quarters.
vi) As per kind verbal orders of Special Secretary the said piece of land was surveyed by the Amin of G.A.department, the report of the Amin, land scheduled & sketch map may be perused at P.271/C to P.269/C. The report states that only Ac.0.459 dec of land is vacant & free from encroachment & rest of the land is under encroachment by milkmen.
If considered Sri Das may be allotted Ac.2.082 dec. of land from the said piece of land i.e. Plot No. 688/2856, Khata No. 1427(G.A. Department), Mz-Jayadev Vihar after vacation 61 encroachment.
Submitted for kind perusal & orders.
The matter was referred to the Chief Minister, Orissa, who, on 19.7.2007 observed as under:
It transpires that the land alienated in favour of RBI for construction of staff quarters was recorded in the name of G.A. Department in the ROR published in 1960-61. Neither any appeal nor any revision appears to have been filed against such recording. The Petitioner has not also made any objection at the time of alienation of the land in favour of RBI. After a lapse of 30 years, he Gomes up with a claim that the land belongs to him. Moreover, a Civil suit is pending over the case land.
In view of the above, it may not be appropriate to settle Ac.0.410 of land as suggested by the Department. The Department is therefore advised to pursue the matter vigorously in the Civil Court.
2. As regards contribution of land for construction of drain & embankment, the Department may address the following:
a) How many land owners have contributed land for construction of channel No. 4 & embankment under Town Planning Scheme, Nayapafli, North-M -
b) Whether the drain & embankment has been constructed as par the approved plan of BDA?
c) Whether the drain & embankment is being used for the purpose for which it has been constructed?
Sd/- Chief Minister; Orlssa.
5. It appears that pursuant to the queries made by the Chief Minister, it was informed that no other person exceipt B.N. Das contributed land for drainage Channel No. 4 under Town Planning Scheme Nayapalli, North. The drain & embankment & road have been made as per T.P. Scheme which is used by the public. The note of the Director of Estates & ex-officio Joint Secretary to Government dated 4.3.2008 is also liable to be perused which is reproduced as under:
The recorded tenants had gifted a total area of Ac.2.816 in 3 registered gift deeds which ate narrated below.
i. Tne Recorded Tenants Sri Laxmi Narayan Das, Satya Narayan Das & Biranchi Narayan Das, S/o- Late Balamukunda Das (father) & Sri Biravchi Narayan Das (brother). So they executed the gift deed No. 6990 dt. 19.8.88 in favour of Bhubaneswar Munuicipality for an area of Ac.454 dec from Khata No. 284, Plot No. 867 Ac.0.288 dec Plot No. 868 Ac.0.010 dec, Plot No. 862 Ac 0.213, Khata No. 122 Plot No. 875 Ac.0.034 dec.
ii. After the death of father Sri Balamukunda Das, the executive power was given to Sri Biranchi Narayan Das by Sri Laxmi Narayan Das & Satya Narayan Das. So by virtue of power of Attorney he gifted Ac.1.632 dec land from plot No. 353, not final Khata No. 170 by RSD No. 7955 dt. 2.12:91.
iii. Thereafter on 5.8.92 by another RSD No. 5981 Sri Biranchi Narayan Das gifted Ac.G.684 demand in favour of Bhubaneswar Municipality.
The total land free gifted to Bhubaneneswar Muncipality is Ac.2.861 dec out of this Ac.1.837 dec. has been gifted for city level drainage channel 4 its embankment road as per the Town Planning Scheme & instruction of BDA.The rest of land Ac. 1.024 dec. has been utilized for internal roads of the individuals to whom Sri Biranchi Narayan Das has sold his land out df said Ac.9.441 dec. of land.
Now Sri Dae claims Ac. 1.837 of land which has baert used as drain & its embankment made by the Public as per Town Planning Scheme. Regarding the queries of Government at Paragraph 2 of P.28/N the compliance is furnished as under on the basis of report received from the BOA placed, at P. 315/C
1. How many-land owners have contributed land for construction of Channel No. 4 & embankment under Tow Planning Scheme, Nayapalli, North-II? : Only one person has contributed land for construction of Drainage Channel No. 4 under T.P. Scheme, Nayapalli
2. Whether the drain & embankment has been constructed as per the approved plan of BDA? : Embankment road & drain has been made as per the T.P. Scheme.
3. Whether the drain embankment is being used for the purpose of which it has been constructed: This is used by the public.
From the above it is seen that the present Petitioner is the only contributor who had responded to the scheme, put to his ill luck the scheme was withdrawn after his contribution/free gift. The free gift of land was made only in response to the government floated scheme. From the field enquiry report it reveals that an area of Ac. 1.837 out of the free gifted fand of the Petitioner being utilized for road & drain deveiopedty the Bhubaneswar Municipal Corporation & the Petitioner preys for due compensation in shape of exchange of land gifted in response to the appeal.
In view of this Government may consider if the Respondent of the developmet scheme floated by the Government, who is the Petitioner in the present case & whose land extending to an area of Ac.1.837 dec. being used as public road & drain in Mz-Nayapaly now Jayadev Vihar would be compensated suitably as the floated scheme was withdrawn by Government ip a later stage & he is the only sufferer.
If approvedorcieVs of Government may kindly be obtained.
Sd/- Dt. 4.3.2008
(Pramod Kumar Mohanty)
Director of estates & ex-officio
Joint Secretary to Government.
Thereafter the Special Secretary to Government, General Administration Department, on 2.4.2008, submitted the file to the Chief Secretary with the following note:
Notes above may be perused with Government order at P28/N. The notice issued by the valuation officer (P-241/C) stipulated that any injuriously affected person can communicate his claim for damages under Section 65 of Orissa Development Authorities Act, 1982. But Section 65 of ODA Act placed below stipulates tor determination of compensation in terms of value of the tend. It does not provide in any manner for allotment of land in exchange of gift land.
Hence the request of the applicant for allotment of land appears to be outside the provision of the said Act. It may therefore, be considered if the matter would be examined for payment of admissible compensation in terms of value of the land.
Sd/- 2.4.08
Special Secretary
G.A. Department Government of Orissa
On 5.4.2008, the Chief Secretary ordered to obtain the views of the Revenue Department quickly & accordingly the file was sent to the Revenue Department. The Commissioner-cum-Secretary to Government, Revenue & Disaster Management Department, submitted the file to the Chief Secretary with the following notes:
There are two issues in this case. The first one pertains to portion of the land used for RBI staff quarters, supposedly on incorrect findings in the settlement operations. This issue of settlement of alternative land of Ac. 0.410 has already been rejected by the Hon'ble Chief Minister at P-28/N.
The other issue relates to portion of the land used for drain/ embankment. G.A. Department has opined that rather than giving alternative land, the solution provided by Section 65 of the O.D.A. Act may be followed & valuation on the date of publication of the declaration should be considered by way of compensation. Revenue Department has no objection if this alternative is considered.
For kind appropriate action.
Sd/-
Commissioner-cum-Secretary
R & D.M. Department.
The Chief Secretary concurred with the aforesaid view on 9.4.2008. Thereafter, the Director of Estates & ex-officio Joint Secretary to Government made a note on 18.4.2008 in respect of the queries of the government & inter alia observed that the file may be submitted to Government for orders as to whether the Petitioner shall be compensated by allotment of substituted land or in terms of cash value.
6. In view of the above note, the Government changed its view & started to give direction to assess the value of the land & ultimately the file was sent to the Chief Minister. The ordet of the Hon'ble Chief Minister dated 31.5.2007 was contrary to the facts, which is quoted as under:
From pre-page.
It seems that the Petitioner has gifted land for his own benefit. Was there any condition for payment of compensation in shape of substitute land/cash value either in the gift deed or in the Town Planning Scheme? The administrative Department may clarify.
Sd/- 31.5.2008
Chief Minister Orissa.
7. Pursuant to the order of the Chief Minister, the Under Secretary, Housing & Urban Development Department by letter dated 14.8.2008 sought a detailed report on the issue from the Planning Member, Bhubaneswar Development Authority & the Planning Member, Bhubaneswar Development Authority by letter dated 17.12.2008 intimated as under:
Bhubaneswar Development Authority Bhubaneswar
No. 11338/MP/BDA, Bhubaneswar, dated 17.12.2008.
To
Sri S.K. Mishra,
The Undersecretary to Government, H & U.D.Department.Bhubaneswar.
Sub: Prayer of Sri B.N.Das for allotment of equivalent Government land in his favour against the land gifted for construction of road & drainage embankment under Town Planning Scheme No. II Nayapalli, Bhubaneswar.
Ref: Your Letter No. TPS.56/08 21862/HUD dated 14.08.2008.
Sir,
With reference to above, I am to say that the proposed plot relates to the Town Planning Scheme in the year 1991 . In this regard Town Planning Scheme was submitted to Government for approval vide letter N0.6O8/BP dated 17.01.91, where all details have been mentioned. Subsequently Government issued an order indicating the provisions/conditions for approval of building plan before approval of Town Planning Scheme under the provision of O.D.A. Act. As per the said T.P. scheme the land position of Sri Das is found to be as under:
As per the Town Planning Scheme 15% of the land was to be contributed by the land owner having land more than one acre. In view of the said scheme Sri Das had to contribute an area of Ac.1.416 of layout of Ac.9.441 dec. But Sri Das has contributed an area of Ac.2.861 dec. of land in the layout plan keeping in view of the city level drainage channel & its embankment road within the Town Planning Scheme area. Thus as it appears, he has contributed an excess area of Ac.l.445 dec. of land. But T.P. Scheme was withdrawn as per the decision of 58th Authority meeting held on 12.10.93. Since the T.P. Scheme has been withdrawn the provision of T.P. Scheme became inoperative.
But it is a fact that the applicant has contributed excess land for the development of road & drainage. These aspects may be considered by the Government while disposing of his case.
This is for favour of kind information.
Yours faithfully,
Sd/ -Planning Member.
8. It is pertinent to mention here that the Petitioners contributed the land as required under the Scheme & thereafter they were compelled to give exqess land failing which the Opposite Party No. 2 was not ready to pass the layout plan submitted by them. It is the common law that nobody can be compelled to give his land & deprived of his property The Government could not have compelled the Petitioners to part with their land under the threat that failing to part with the land, their layout plan would not be passed. More so when under the scheme prescribed, the land which was to be gifted by the Petitioners under the compelling circumstances was only Ac.1.416 decimals at the rate of 15% of the total land, but they were compelled to contribute Ac.2.861 dec. which was beyond the scheme & by this way, they had to contribute ultimately Ac.1.837 decs in excess of the requirement of the Scheme under the threat that in case they failed to give the same, their layout plan would not be sanctioned. It is necessary to mention here that if the layout plan submitted by the Petitioners would not have been passed, they could not have raised any construction. Therefore, the so-called gift of land was not by free will but under threat.
9. In case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock & Chem. Ltd. and Ors. : AIR 2007 Supreme Court 2458, the Hon'ble Supreme Court has held that the right of properties is not only a constitutional right but is a human right. The relevant paragraphs of the observation is quoted as under:
54. The right of property is now considered to be not only a constitutional right but also a human human right.
55. The Declaration of Human Rights (1789) enunciates under Article 17 'since the right to property is inviolable & sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it & just & prior indemnity has been paid. Further under Article 217(IIII) of 10th December, 1948 adopted in the General Assembly Resolution it is stated that: (i) Everyone has the right to own property alone as well as in association with others (ii) No-one shall be arbitrarily deprived of his property.'
56. Earlier human rights were existed to the claim of individuals right to health, fight to livelihood, right to shelter & employment etc but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights.'
57. As president John Adams (1797 1801) put it,:
property is surety a right of mankind as real as liberty. 'Adding. 'The moment the idea is admitted into society that property is not as sacred as the laws of God, & that there is not a force of law & public justice to protect it, anarchy & tyranny commence.58. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall he deprived of his property save in accordance with law.
10. In view of the facts & circumstances of the case, we allow this Writ Petition & direct the Opposite Party No. 1 to allot to the Petitioner equivalent extent of land (Ac.1.837 dec.) in exchange having the similar potential value which they have counted within a period of three months from the date of production of a copy of this order & the other Opposite Parties are directed to execute the order to be passed by Opposite Party No. 1 in compliance of this order.
B.P. Ray, J.
I agree.