Bandhu Baxia Vs. State of Orissa and 4 ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/532076
SubjectProperty
CourtOrissa High Court
Decided OnApr-22-2009
Judge B.S. Chauhan, C.J. and; I. Mahanty, J.
Reported in108(2009)CLT85
AppellantBandhu Baxia
RespondentState of Orissa and 4 ors.
DispositionPetition dismissed
Cases ReferredState of Rajasthan and Ors. v. D.R. Laxmi and Ors.
Excerpt:
property - acquisition proceedings - ultra vires - orissa development of industries, irrigation, capital construction and resettlement of displaced persons (land acquisition act) act, 1948 - acquisition proceedings initiated in 1955 and land of petitioner was acquired by respondent wothout giving copensation to his forefther - grievances of petitioner was that land was acquired but not used for purpose and land was in possession of petitioner thus, acquistion proceeding is voiltive of of articles 19(1)(f), 31a and 300a of constitution and ultra vires - hence, present petition - held, there is nothing on record to show as on what basis statement had been made by petitioner, that compensation had not been paid to his forefathers - petitioner was born after 15 years of acquisition of land - petitioner's father or grandfather could have challenged acquisition proceeding - however, they did not choose to do so - impugned act stood repealed in 1994 - at this belated stage validity of certain provisions of act cannot be allowed to be questioned - petitioner has not been able to point out any specific provisions of act which are claimed to be ultra vires constitution - relief sought is for declaring entire act as ultra vires and unconstitutional - even if land had been taken illegally, issue cannot be examined at such belated stage - hence, petition is liable to be dismissed - petition dismissed accordingly - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - (2005) 8 scc 252. 16. the petitioner has miserably failed to substantiate the pleading that his forefathers had not been paid the due compensation. it is thus, well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the court should be loathe to quash the notifications.b.s. chauhan, c.j.1. the case has a checkered history as the petitioner had earlier approached this court through the 'rourkela local displaced association' & had challenged the land acquisition proceeding. the said petition was dismissed. the association approached the hon'ble supreme court & the apex court made certain observations on the basis of which the present petition has been filed.2. this writ petition has been filed challenging the constitutional validity of the provisions of the 'orissa development of industries, irrigation, capital construction and resettlement of displaced persons (land acquisition act) act, 1948' (hereinafter referred to as the 'act') on the grounds that the provisions providing for acquisition of land under the said act had been violative of the provisions of article 19(1)(f) of the constitution of india and after amendment of the constitution of articles 31a and 300a of the constitution of india and as a consequence, seeking declaration that any acquisition made under the said act is null and void. further, relief has been sought to retain the land possessed by the petitioner as it has not been utilized for the purpose it stood acquired.3. the facts and circumstances giving rise to this case are that a huge area including the land of the forefathers of petitioner situate in revenue village kantajhar, district sundargarh (amongst others) stood notified under section 3(1) of the act on 19th may, 1955, for establishment of rourkela steel plant and acquisition proceedings were concluded. petitioner claims that his forefathers had neither been paid compensation for the land acquired nor they were dispossessed from the land and thus, he is still continuing in possession. in the revenue record names of his father and forefathers continued and name of rourkela steel plant was recorded for the first time in 1993. a huge area of land had not been utilized for the purpose of establishment of the steel plant and a portion of the said land was, returned to the government in 1962. it has been utilised for purposes other than the purpose for which it had been acquired. the act stood repealed in 1994. the petitioner and his family members had been harassed by the opposite parties- authorities by initiating proceedings under the provisions of the 'orissa prevention of land encroachment act, 1972' (hereinafter referred to as 'ople act'). some similarly situated persons, who were dispossessed or were likely to be dispossessed, filed three writ petitions through their association before this court being w.p.(c) no. 15654 of 2005, w.r(c) no. 4441 of 2006 and w.p.(c) no. 2308 of 2007 which were heard and dismissed vide judgment and order dated 5.12.2008. though the petitioners in those cases had challenged the constitutional validity of the provisions of the act, this court did not consider the said submissions. the said association filed s.l.p. (civil) nos. 1859-1861 of 2009 before the hon'ble supreme court which have been dismissed. however, observations have been made therein that the dismissal of the petitions filed by the association would not come in way of any person/individual agitating his right in accordance with law, if he has any existing enforceable right. hence this petition.4. mr. bharat kumar misra, learned counsel for the petitioner has contended that provisions of the act were ultra vires & unconstitutional as no person could be deprived from his immovable property without following the procedure prescribed by law & without paying the compensation. the act was violative of the provisions of article 31a & after its. deletion, of article 300a of the constitution. the right to property earlier had been a fundamental right & now it is a constitutional & human right. although the act stood repealed in 1994, that would not change the position, for the reason that compensation had not been paid to the petitioner's forefathers. they had also not been, dispossessed. the land was not required for the purpose it had been acquired. therefore, the act which stood repealed with effect from 22.7.1994 be declared ultra vires & the opposite parties be restrained to interfere with the physical possession of the petitioner.5. on the other hand mr. p. k. khuntia, learned additional government advocate appearing for the state has vehemently opposed the petition contending that acquisition had been made in 1955 and as per the affidavit sworn by the petitioner he is only 38 years of age. therefore, it can be inferred that the petitioner was born in 1970, that is, after 15 years of the acquisition of land. there is nothing on record to show that the petitioner's forefathers had not received the compensation or they had not been dispossessed. rather in view of the provisions of the act, the land in dispute vested in the state free from all encumbrances and once it is vested in the state, it cannot be divested. even if the land is not used for the purpose for which it stood acquired, the petitioner cannot have any objection if the land is being used for any other public purpose. petitioner cannot have any grievance in this respect. initiation of proceedings under the ople act shows that after being dispossessed the petitioner has encroached upon some land illegally and there is nothing on record to establish that the land so encroached upon, is the same land, which at one stage belonged to the forefathers of the petitioner. acquisition proceedings cannot be challenged at such a belated stage, i.e., 55 years after acquisition. further the petitioner is not able to point out as to how the act was ultra vires, the constitution.the act provided a detailed procedure for determination of the market value of the land under section 10 making provisions for appointment of expert assessors and arbitrators. market value of the land was to be assessed as per the provisions of section 23 of the land acquisition act, 1894 (hereinafter called the 'l.a. act'). mr. khuntia submitted that in the judgment delivered in the case filed by the rourkela displaced association, the issue of non-payment of compensation had been agitated.the state authorities issued notices inviting applications from the people who had not received the compensation in oriya newspaper, 'the sambad' dated 19.2.2006. forty-seven applications were received. on scrutiny it was found that 42 persons had already received compensation for the land acquired. compensation could not be paid to one applicant because there was some discrepancy in the revenue record. thus, only four such applicants were found to be genuine. most importantly the present petitioner did not make any representation at that time, nor he made any attempt to obtain necessary authentic proof of their claims. a bald statement that his forefathers were not paid the compensation is not enough to form the foundation of the present petition.6. there is a clear distinction in law regarding pleadings in the writ petition and that of a suit proceedings. a petitioner is required to adduce evidence to substantiate the pleadings of the writ petition. there is nothing on the record to show as on what basis the statement had been made by the petitioner, that compensation had not been paid to his forefathers. the petitioner was born after 15 years of acquisition of the land. the petitioner's father or grandfather could have challenged the acquisition proceeding. however, they did not choose to do so. even if the land had been taken illegally, the issue cannot be examined at such a belated stage. hence the petition is liable to be dismissed.7. we have considered the rival submissions made by the learned counsel for the parties and perused the record.8. admittedly the right to property had earlier been a fundamental right & now it remains as a constitutional and/or as a human right. no person can be deprived of his property without paying the compensation. (vide jilubhai nanbhai khachar etc. etc. v. state of gujarat and anr. : air 1995 sc 142; s.r. ejaz v. t.n. handloom weavers' cooperative society ltd. : air 2002 sc 1152; dlf qutab enclave complex educational charitable trust v. state of haryana and ors. : air 2003 sc 1648; indian handicrafts emporium v. union of india and ors. : air 2003 sc 3240; p.t. munichikkanna reddy and ors. v. revamma and ors. : air 2007 sc 1753; smt. m. naga venkata lakshmi v. visakhapatnam municipal corporation and anr. : (2007) 8 scc 748; aslam mohd. merchant v. competent authority and ors. (2008) 14 scc 186; karnataka state financial corporation v. n. narasimahaiah and ors. : air 2008 sc 1797; vimlaben ajitbhai patel v. vatslaben ashokbhai patel and ors. : air 2008 sc 2675; & n. padmamma and ors. v. s. ramakrishna reddy and ors. j.t. 2008 (10) sc 598).9. in jilubhai nanbhai khachar (supra) the apex court defined the 'property' as under:property in legal sense means an aggregate of rights which are guaranteed and protected by law. it extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of thing in every legal way to possess it, to use it and to exclude everyone else from interfering with it. the dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property.the court further observed that a person who is deprived of his property without authority of law is entitled to compensation.10. the supreme court in chairman, indore vikas pradhikaran v. pure industrial coke & chemicals ltd. and ors. : air 2007 sc 2458, the court held as under: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 be deprived of his property save in accordance with law.11. thus, only 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. and ors. v. manohar : air 2005 sc 488; and ashok kumar and anr. v. state of u.p. and ors. : air 2005 all. 44).12. thus, it is a settled legal proposition that while the right to property had earlier been a fundamental right, now, it is constitutional and human right and no property can be acquired without paying the compensation, nor can a person can be deprived of his property without following the due procedure prescribed by law.13. according to the pleadings, the petitioner claims to be the descendant of one jego oram, who had three sons, namely, fakir, madra & hembo. hembo had 3 sons, namely, gandru, madhu & lachhu. petitioner bandhu baxia is the son of gandru. it is stated by the learned counsel for the petitioner that the petitioner had heard from his forefathers that compensation had not been paid to them. such a vague statement would not serve any purpose, particularly in view of the fact that he has stated that his grandfather died in 1962 & his father died in 1982 & the land had been acquired in 1955. his grand father 'the person interested' might have received the compensation. at the time of death of his father in 1982, the petitioner was only 10-12 years of age. no explanation is being furnished as on what basis such a statement is being made. as the petitioner is facing proceedings under the ople act, it is quite possible that he has encroached upon a part of the public land. learned counsel for the petitioner fairly conceded that it is not possible at such a belated stage to identify the land, which at one time belonged to petitioner's forefathers. in such a fact situation, it becomes difficult for the court to accept such vague pleadings.14. it is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. in bharat singh and ors. v. state of haryana and ors. : air 1988 sc 2181, the hon'ble supreme court has observed as under:in our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. if the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. there is a distinction between a pleading under the code of civil procedure and a writ petition or a counter-affidavit. while in a pleading, that is a plaint or written statement, the facts and not the evidence are required to be pleaded. in a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.15. similar view has been reiterated in larsen & toubro ltd. and ors. v. state of gujarat and ors. : air 1998 sc 1608; national buildings construction corporation v. s. raghunathan and ors. : air 1998 sc 2779; ram narain arora v. asha rani and ors. : air 1998 sc 3012; smt chitra kumari v. union of india and ors. : air 2001 sc 1237; & state of u.p. and ors. v. chandra prakash pandey and ors. : air 2001 sc 1298; atul castings ltd. v. bawa gurvachan singh, : air 2001 sc 1684; vithal n. shetti and anr. v. prakash n. rudrakar and ors. (2003) 1 scc 18; devasahayam (dead) by l.rs. v. p. savithramma and ors. : (2005) 7 scc 653; and sait nagjee purushottam and co. ltd. v. vimalabai prabhulal and ors. : (2005) 8 scc 252.16. the petitioner has miserably failed to substantiate the pleading that his forefathers had not been paid the due compensation. there is also a distinction between 'not receiving the compensation' & not making payment thereof. state might have determined the compensation, & offered it to the 'person aggrieved', but the 'person aggrieved' may not have received it for some reason.17. in view of the provisions contained in section 5 of the act once the land vests in the state 'free from all encumbrances' on the date the notice is served or published in the gazette. section 10 of the act provides that the state government or the competent authority may use or deal with any land acquired under the provisions of the said act in such manner and subject to such condition as it will appear to be expedient. therefore, once the land has vested in the state free from all encumbrances it cannot be divested and can be used for public purpose other than for which it was acquired.18. in satendra prasad jain v. state of u.p. and ors. : air 1993 sc 2517, the supreme court held that once land vests in the state free from all encumbrances, it cannot be divested & proceedings under the act would not lapse even if award is not made within the statutory period of statutory limitation. in cue possession is taken resorting to only powers under section 17 of the act, the said limitation under section 11-a of the act does not apply and the collector is not absolved from making the award. the same view has been reiterated in avadh behari yadav v. state of bihar and ors. : (1995) 6 scc 31; u.p. jal nigam v. kalra properties (p) ltd. : air 1996 sc 1170; pratap v. state of rajasthan : air 1996 sc 1296; chandraganda ramgonda patil v. state of maharastra : (1996) 6 scc 405; allahabad development authority v. nasiruzzaman and ors. : (1996) 6 scc 424; state of kerala and ors. v. m. bhaskaran pillai and ors. : air 1997 sc 2703; m. ramalinga thevar v. state of tamil nadu and ors. : (2000) 4 scc 322; printers (mysore) ltd. v. m.a. rasheed and ors. : (2004) 4 scc 460; bangalore development authority v. r. manumaiah : (2005) 12 scc 508; & government of andhra pradesh v. syed akbar and ors. : air 2005 sc 492.19. thus, it is evident that the land so acquired can not be restored to the tenure holder/person interested even if it is not used for the purpose it was originally acquired, and since it is being used for other public purpose. the proceedings cannot be withdrawn/abandoned under the provisions of the act or section 21 of the general clauses act, once the possession of the land has been taken and the land has vested in state free from all encumbrances. (vide state of madhya pradesh v. v.p. sharma : air 1966 sc 1593; lt. governor of himachal pradesh and anr. v. shri avinash sharma : air 1970 sc 1576; and rajasthan housing board and ors. v. shri kishan and ors. : (1993) 2 scc 84).20. the meaning of word 'vesting' has been considered time & again. in fruit and vegetable merchants union v. the delhi improvement trust : air 1957 sc 344, the apex court held that the meaning of word 'vesting' varies as per the context of the statute in which the property vests. so far as the vesting under sections 16 and 17 of the l.a. act is concerned, the court held as under:.the property acquired becomes the property of government without any condition or limitations either as to title or possession. the legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.21. 'encumbrance' actually mean the burden caused by an act or omissions of man & not that created by nature. it means a burden or charge upon property or a claim or lien on the land. it means a legal liability on property. thus, it constitutes a burden on the title which diminishes the value of the land. so far as the provisions of the land acquisition act are concerned, the word 'encumbrance' means the interest in respect of which compensation has been made or could have been claimed. these examples of ' encumbrance' includes a lease or a mortgage, securities, servitudes & trust etc. (vide collector of bombay v. nusserwanji rattanji mistri and ors. : air 1955 sc 298).22. in state of himachal pradesh v. tarsem singh and ors. : air 2001 sc 3431, the apex court held that the terminology 'free from all encumbrances' used in section 16 of the l.a. act is wholly unqualified and would include within its en-compass 'all rights, title and interests including easementary rights' and stands extinguished when the title vests in the state. though in himachal pradesh state electricity board v. shiv kumar sharma : air 2005 sc 954, the apex court held that when the land vests in the state free from all encumbrances, it does not include the easementary rights.thus, 'free from all encumbrances' means vesting of land in the state without any burden or charge on it.23. in secretary of state v. amulya charan banerjee and ors. : air 1927 cal. 874, the calcutta high court considered the issue involved herein as to whether after acquisition of the land, it could be put to use for the purposes other than for what it was originally acquired and held that after acquisition, the new owners have the ordinary rights of proprietors and may use their land as they think fit for any purpose, which does not infringe the rights of others and is not inconsistent with the purposes sanctioned by the statute, under which the land has been taken. while deciding the said case, reliance was placed on the judgment in maharaja luchmeswar singh v. the chairman of the darbhanga municipality 17 ia 90, wherein the privy council upheld the using of land for the purpose other than the purpose for which the land had been acquired. in the said case, the land had been acquired for establishing a public ghaat but on the part of the said land, a market was established.24. in gulam mustafa and ors. v. the state of maharashtra and ors. : air 1977 sc 448 in a similar situation, the apex court held as under:once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. there is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the...declaration.25. this issue has also been dealt with by this court in the earlier writ petition filed by the rourkela local displaced association (supra) wherein the judgment of the hon'ble supreme court, dealing with the same acquisition proceedings in mangal oram v. state of orissa : air 1977 sc 1456 has been relied upon. in mangal oram it was contended on behalf of the land owners that the state government was not competent to acquire the land under the act for the establishment of a steel plant. the apex court held that the establishment of the steel plant and ancillary industries at rourkela should be held to answer to the definition of 'development of industries'. the further contention raised before the apex court was that part of the land which were acquired for the purpose of steel plant and ancillary industries were being used as a civil township, when the acquired land could only be used for the steel plant and ancillary industries and not for a civil township. the court held the same as devoid of force observing as under:the establishment of a steel plant necessarily postulates the construction of residential quarters for the workmen to be employed in the plant. in addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. lands would likewise be needed for post offices, banks, clubs, parks, cinemas, roads, police stations as also for cremation and burial of the dead. land would also be needed for a variety of other purposes and civil amenities. a township is a necessary adjunct and concomitant of a big steel plant. the fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.26. reiterating a similar view in c. padma and ors. v. deputy secretary to the government of tamil nadu and ors. : (1997) 2 scc 627, the apex court held that if by virtue of valid acquisition of land, it stands vested in the state, thereafter claimants are not entitled to restitution of the possession on the ground that either original public purpose is ceased to be in operation or the land could not be used for any other purposes.27. in bhagat singh v. state of u.p. and ors. : air 1999 sc 436; niladri narayan chandradhurja v. state of west bengal : air 2002 sc 2532; and northern indian glass industries v. jaswant singh and ors. : (2003) 1 scc 335, the apex court held that, the land use can be changed by the statutory authority after the land vests in the state free from all encumbrances.28. in view of the above, the law can be summarised that once the land is acquired it vests in the state free from all encumbrances. it is not the concern of the land owner as how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. he becomes persona non grata once the land vests in the state. he has a right to get compensation only for the same. the person interested cannot claim the right of restitution of land on any ground, whatsoever.29. the basic question which arises for consideration in this case is as to whether if is permissible for the petitioner to challenge the acquisition proceedings and also the vires of the act which stood repealed in 1994, at such a belated stage.30. when a person challenges section 4 notification on any ground, it should be challenged within a reasonable period, and if the acquisition is challenged at a belated stage, the petition deserves to bed is missed only on this count. (vide hari singh and ors. v. state of u.p. : air 1984 sc 1020).31. a constitution bench of the supreme court, in aflatoon and ors. v. lt. governor, delhi and ors. : air 1974 sc 2077, has observed as under:.to have sat on the fence & allowed the government to complete the acquisition on the basis that notification under section 4 and the declaration under section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. the writ petitions are liable to be dismissed on the ground of laches & delay on the part of the petitioner.32. same view has been taken by the supreme court in state of mysore v. v.k. kangan : air 1975 sc 2190; pt. girdharan prasad missir v. state of bihar (1980) 2 scc 83; h.d. vora v. state of maharashtra : air 1984 sc 866; bhoop singh v. union of india : air 1992 sc 1414; ram chand v. union of india : (1994) 1 scc 44; state of orissa v. dhobei sethi and anr. : (1995) 5 scc 583; state of maharashtra v. digambar : air 1995 sc 1991; state of tamil nadu v. l. krishnan : air 1996 sc 497; and c. padma v. deputy secretary to govt. of tamil nadu : (1997).2 scc 627.33. in municipal corporation of greater bombay v. industrial development investment co. (p) ltd. : air 1997 sc 482, the supreme court observed as under:if the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award & possession is taken in furtherance thereof & vest in the state free from all encumbrances, the slumbered interested person would be told off the gates of the court that his grievance should not be entertained when there is inordinate delay in filing the writ petition & when all steps taken in the acquisition proceedings have become final, the court should be loath to quash the notifications.34. similar view has been reiterated in state of rajasthan and ors. v. d.r. laxmi and ors. : (1996) 6 scc 445, wherein the apex court has held that even the void proceedings need not be set at naught if the party has not approached the court within reasonable time, as judicial review is not-permissible at a belated stage. the apex court held as under:.delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of laches. it is thus, well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the court should be loathe to quash the notifications.... the order or action, if ultra vires the power, becomes void and it does not confer any right. but the action need not necessarily be set at naught in all events. though the order may be void, if the party does not approach the court within reasonable, time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the court has to be exercised in a reasonable manner. when the discretion has been conferred on the court, the court may in appropriate case decline to grant the relief, even if it holds that the order was void. the net result is that extraordinary jurisdiction of the court may not be exercised in such circumstances.35. similar view has been reiterated by the supreme court in northern indian glass industries v. jaswant singh, : air 2003 sc 234; & haryana state handloom & handicrafts corporation ltd. v. jain school society air 2004 sc 850.36. the present petition is squarely covered by the judgment of the hon'ble supreme court in state of rajasthan and ors. v. d.r. laxmi and ors. : (1996) 6 scc 445, that even if the proceedings are void, it cannot be declared so at such a belated stage. the petitioner attained majority in 1988. no explanation could be furnished by the learned counsel for petitioner as to why the petitioner waited for more than 21 years to approach this court. even the earlier petition by the rourkela local displaced association was filed only in 2005.37. in the instant case, it is not the complaint of the petitioner that the provisions of the act had not been followed and whether the compensation in this case has been received by anybody or not is a question of fact. no evidence has been adduced by the petitioner to substantiate his averments that his forefathers had not received the compensation. the act stood repealed in 1994. we are afraid at this belated stage the validity of certain provisions of the act cannot be allowed to be questioned. more so the petitioner has not been able to point out any specific provisions of the said act which are claimed to be ultra vires the constitution. the relief sought is for declaring the entire act as ultra vires & unconstitutional.38. in view of the above, we do not find any force in the submissions of the learned counsel for petitioner. the petition is dismissed.i. mahanty, j.39. i agree.
Judgment:

B.S. Chauhan, C.J.

1. The case has a checkered history as the Petitioner had earlier approached this Court through the 'Rourkela Local Displaced Association' & had challenged the land acquisition proceeding. The said petition was dismissed. The Association approached the Hon'ble Supreme Court & the Apex Court made certain observations on the basis of which the present petition has been filed.

2. This Writ Petition has been filed challenging the constitutional validity of the provisions of the 'Orissa Development of Industries, Irrigation, Capital Construction and Resettlement of Displaced persons (Land Acquisition Act) Act, 1948' (hereinafter referred to as the 'Act') on the grounds that the provisions providing for acquisition of land under the said Act had been violative of the provisions of Article 19(1)(f) of the Constitution of India and after amendment of the Constitution of Articles 31A and 300A of the Constitution of India and as a consequence, seeking declaration that any acquisition made under the said Act is null and void. Further, relief has been sought to retain the land possessed by the Petitioner as it has not been utilized for the purpose it stood acquired.

3. The facts and circumstances giving rise to this case are that a huge area including the land of the forefathers of Petitioner situate in revenue village Kantajhar, district Sundargarh (amongst others) stood notified under Section 3(1) of the Act on 19th May, 1955, for establishment of Rourkela Steel Plant and acquisition proceedings were concluded. Petitioner claims that his forefathers had neither been paid compensation for the land acquired nor they were dispossessed from the land and thus, he is still continuing in possession. In the revenue record names of his father and forefathers continued and name of Rourkela Steel Plant was recorded for the first time in 1993. A huge area of land had not been utilized for the purpose of establishment of the steel plant and a portion of the said land was, returned to the Government in 1962. It has been utilised for purposes other than the purpose for which it had been acquired. The Act stood repealed in 1994. The Petitioner and his family members had been harassed by the Opposite Parties- authorities by initiating proceedings under the provisions of the 'Orissa Prevention of Land Encroachment Act, 1972' (hereinafter referred to as 'OPLE Act'). Some similarly situated persons, who were dispossessed or were likely to be dispossessed, filed three Writ Petitions through their Association before this Court being W.P.(C) No. 15654 of 2005, W.R(C) No. 4441 of 2006 and W.P.(C) No. 2308 of 2007 which were heard and dismissed vide Judgment and Order Dated 5.12.2008. Though the Petitioners in those cases had challenged the constitutional validity of the provisions of the Act, this Court did not consider the said submissions. The said Association filed S.L.P. (Civil) Nos. 1859-1861 of 2009 before the Hon'ble Supreme Court which have been dismissed. However, observations have been made therein that the dismissal of the petitions filed by the Association would not come in way of any person/individual agitating his right in accordance with law, if he has any existing enforceable right. Hence this petition.

4. Mr. Bharat Kumar Misra, Learned Counsel for the Petitioner has contended that provisions of the Act were ultra vires & unconstitutional as no person could be deprived from his immovable property without following the procedure prescribed by law & without paying the compensation. The Act was violative of the provisions of Article 31A & after its. deletion, of Article 300A of the Constitution. The right to property earlier had been a fundamental right & now it is a constitutional & human right. Although the Act stood repealed in 1994, that would not change the position, for the reason that compensation had not been paid to the Petitioner's forefathers. They had also not been, dispossessed. The land was not required for the purpose it had been acquired. Therefore, the Act which stood repealed with effect from 22.7.1994 be declared ultra vires & the Opposite Parties be restrained to interfere with the physical possession of the Petitioner.

5. On the other hand Mr. P. K. Khuntia, Learned Additional Government Advocate appearing for the State has vehemently opposed the petition contending that acquisition had been made in 1955 and as per the affidavit sworn by the Petitioner he is only 38 years of age. Therefore, it can be inferred that the Petitioner was born in 1970, that is, after 15 years of the acquisition of land. There is nothing on record to show that the Petitioner's forefathers had not received the compensation or they had not been dispossessed. Rather in view of the provisions of the Act, the land in dispute vested in the State free from all encumbrances and once it is vested in the State, it cannot be divested. Even if the land is not used for the purpose for which it stood acquired, the Petitioner cannot have any objection if the land is being used for any other public purpose. Petitioner cannot have any grievance in this respect. Initiation of proceedings under the OPLE Act shows that after being dispossessed the Petitioner has encroached upon some land illegally and there is nothing on record to establish that the land so encroached upon, is the same land, which at one stage belonged to the forefathers of the Petitioner. Acquisition proceedings cannot be challenged at such a belated stage, i.e., 55 years after acquisition. Further the Petitioner is not able to point out as to how the Act was ultra vires, the Constitution.

The Act provided a detailed procedure for determination of the market value of the land Under Section 10 making provisions for appointment of expert assessors and arbitrators. Market value of the land was to be assessed as per the provisions of Section 23 of the Land Acquisition Act, 1894 (hereinafter called the 'L.A. Act'). Mr. Khuntia submitted that in the Judgment delivered in the case filed by the Rourkela Displaced Association, the issue of non-payment of compensation had been agitated.

The State Authorities issued notices inviting applications from the people who had not received the compensation in Oriya newspaper, 'The Sambad' dated 19.2.2006. Forty-seven applications were received. On scrutiny it was found that 42 persons had already received compensation for the land acquired. Compensation could not be paid to one applicant because there was some discrepancy in the revenue record. Thus, only four such applicants were found to be genuine. Most importantly the present Petitioner did not make any representation at that time, nor he made any attempt to obtain necessary authentic proof of their claims. A bald statement that his forefathers were not paid the compensation is not enough to form the foundation of the present petition.

6. There is a clear distinction in law regarding pleadings in the Writ Petition and that of a suit proceedings. A Petitioner is required to adduce evidence to substantiate the pleadings of the Writ Petition. There is nothing on the record to show as on what basis the statement had been made by the Petitioner, that compensation had not been paid to his forefathers. The Petitioner was born after 15 years of acquisition of the land. The Petitioner's father or grandfather could have challenged the acquisition proceeding. However, they did not choose to do so. Even if the land had been taken illegally, the issue cannot be examined at such a belated stage. Hence the petition is liable to be dismissed.

7. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.

8. Admittedly the right to property had earlier been a fundamental right & now it remains as a constitutional and/or as a human right. No person can be deprived of his property without paying the compensation. (Vide Jilubhai Nanbhai Khachar etc. etc. v. State of Gujarat and Anr. : AIR 1995 SC 142; S.R. Ejaz v. T.N. Handloom Weavers' Cooperative Society Ltd. : AIR 2002 SC 1152; DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors. : AIR 2003 SC 1648; Indian Handicrafts Emporium v. Union of India and Ors. : AIR 2003 SC 3240; P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. : AIR 2007 SC 1753; Smt. M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corporation and Anr. : (2007) 8 SCC 748; Aslam Mohd. Merchant v. Competent Authority and Ors. (2008) 14 SCC 186; Karnataka State Financial Corporation v. N. Narasimahaiah and Ors. : AIR 2008 SC 1797; Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors. : AIR 2008 SC 2675; & N. Padmamma and Ors. v. S. Ramakrishna Reddy and Ors. J.T. 2008 (10) SC 598).

9. In Jilubhai Nanbhai Khachar (supra) the Apex Court defined the 'property' as under:

Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of thing in every legal way to possess it, to use it and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property.

The Court further observed that a person who is deprived of his property without authority of law is entitled to compensation.

10. The Supreme Court In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and Ors. : AIR 2007 SC 2458, the Court held as under:

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 be deprived of his property save in accordance with law.

11. Thus, only 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. and Ors. v. Manohar : AIR 2005 SC 488; and Ashok Kumar and Anr. v. State of U.P. and Ors. : AIR 2005 All. 44).

12. Thus, it is a settled legal proposition that while the right to property had earlier been a fundamental right, now, it is constitutional and human right and no property can be acquired without paying the compensation, nor can a person can be deprived of his property without following the due procedure prescribed by law.

13. According to the pleadings, the Petitioner claims to be the descendant of one Jego Oram, who had three sons, namely, Fakir, Madra & Hembo. Hembo had 3 sons, namely, Gandru, Madhu & Lachhu. Petitioner Bandhu Baxia is the son of Gandru. It is stated by the Learned Counsel for the Petitioner that the Petitioner had heard from his forefathers that compensation had not been paid to them. Such a vague statement would not serve any purpose, particularly in view of the fact that he has stated that his grandfather died in 1962 & his father died in 1982 & the land had been acquired in 1955. His grand father 'the person interested' might have received the compensation. At the time of death of his father in 1982, the Petitioner was only 10-12 years of age. No explanation is being furnished as on what basis such a statement is being made. As the Petitioner is facing proceedings under the OPLE Act, it is quite possible that he has encroached upon a part of the public land. Learned Counsel for the Petitioner fairly conceded that it is not possible at such a belated stage to identify the land, which at one time belonged to Petitioner's forefathers. In such a fact situation, it becomes difficult for the Court to accept such vague pleadings.

14. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh and Ors. v. State of Haryana and Ors. : AIR 1988 SC 2181, the Hon'ble Supreme Court has observed as under:

In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the Writ Petitioner, must plead and prove such facts by evidence which must appear from the Writ Petition and if he is the Respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the Writ Petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a pleading under the Code of Civil Procedure and a Writ Petition or a counter-affidavit. While in a pleading, that is a plaint or written statement, the facts and not the evidence are required to be pleaded. In a Writ Petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

15. Similar view has been reiterated in Larsen & Toubro Ltd. and Ors. v. State of Gujarat and Ors. : AIR 1998 SC 1608; National Buildings Construction Corporation v. S. Raghunathan and Ors. : AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani and Ors. : AIR 1998 SC 3012; Smt Chitra Kumari v. Union of India and Ors. : AIR 2001 SC 1237; & State of U.P. and Ors. v. Chandra Prakash Pandey and Ors. : AIR 2001 SC 1298; Atul Castings Ltd. v. Bawa Gurvachan Singh, : AIR 2001 SC 1684; Vithal N. Shetti and Anr. v. Prakash N. Rudrakar and Ors. (2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. v. P. Savithramma and Ors. : (2005) 7 SCC 653; and Sait Nagjee Purushottam and Co. Ltd. v. Vimalabai Prabhulal and Ors. : (2005) 8 SCC 252.

16. The Petitioner has miserably failed to substantiate the pleading that his forefathers had not been paid the due compensation. There is also a distinction between 'not receiving the compensation' & not making payment thereof. State might have determined the compensation, & offered it to the 'person aggrieved', but the 'person aggrieved' may not have received it for some reason.

17. In view of the provisions contained in Section 5 of the Act once the land vests in the State 'free from all encumbrances' on the date the notice is served or published in the gazette. Section 10 of the Act provides that the State Government or the competent authority may use or deal with any land acquired under the provisions of the said Act in such manner and subject to such condition as it will appear to be expedient. Therefore, once the land has vested in the State free from all encumbrances it cannot be divested and can be used for public purpose other than for which it was acquired.

18. In Satendra Prasad Jain v. State of U.P. and Ors. : AIR 1993 SC 2517, the Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested & proceedings under the Act would not lapse even if award is not made within the statutory period of statutory limitation. In cue possession is taken resorting to only powers Under Section 17 of the Act, the said limitation Under Section 11-A of the Act does not apply and the Collector is not absolved from making the award. The same view has been reiterated in Avadh Behari Yadav v. State of Bihar and Ors. : (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. : AIR 1996 SC 1170; Pratap v. State of Rajasthan : AIR 1996 SC 1296; Chandraganda Ramgonda Patil v. State of Maharastra : (1996) 6 SCC 405; Allahabad Development Authority v. Nasiruzzaman and Ors. : (1996) 6 SCC 424; State of Kerala and Ors. v. M. Bhaskaran Pillai and Ors. : AIR 1997 SC 2703; M. Ramalinga Thevar v. State of Tamil Nadu and Ors. : (2000) 4 SCC 322; Printers (Mysore) Ltd. v. M.A. Rasheed and Ors. : (2004) 4 SCC 460; Bangalore Development Authority v. R. Manumaiah : (2005) 12 SCC 508; & Government of Andhra Pradesh v. Syed Akbar and Ors. : AIR 2005 SC 492.

19. Thus, it is evident that the land so acquired can not be restored to the tenure holder/person interested even if it is not used for the purpose it was originally acquired, and since it is being used for other public purpose. The proceedings cannot be withdrawn/abandoned under the provisions of the Act or Section 21 of the General Clauses Act, once the possession of the land has been taken and the land has vested in State free from all encumbrances. (Vide State of Madhya Pradesh v. V.P. Sharma : AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh and Anr. v. Shri Avinash Sharma : AIR 1970 SC 1576; and Rajasthan Housing Board and Ors. v. Shri Kishan and Ors. : (1993) 2 SCC 84).

20. The meaning of word 'vesting' has been considered time & again. In Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust : AIR 1957 SC 344, the Apex Court held that the meaning of word 'vesting' varies as per the context of the Statute in which the property vests. So far as the vesting under Sections 16 and 17 of the L.A. Act is concerned, the Court held as under:.the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.

21. 'Encumbrance' actually mean the burden caused by an act or omissions of man & not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. So far as the provisions of the land acquisition Act are concerned, the word 'encumbrance' means the interest in respect of which compensation has been made or could have been claimed. These examples of ' encumbrance' includes a lease or a mortgage, securities, servitudes & trust etc. (Vide Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors. : AIR 1955 SC 298).

22. In State of Himachal Pradesh v. Tarsem Singh and Ors. : AIR 2001 SC 3431, the Apex Court held that the terminology 'free from all encumbrances' used in Section 16 of the L.A. Act is wholly unqualified and would include within its en-compass 'all rights, title and interests including easementary rights' and stands extinguished when the title vests in the State. Though in Himachal Pradesh State Electricity Board v. Shiv Kumar Sharma : AIR 2005 SC 954, the Apex Court held that when the land vests in the State free from all encumbrances, it does not include the easementary rights.

Thus, 'free from all encumbrances' means vesting of land in the State without any burden or charge on it.

23. In Secretary of State v. Amulya Charan Banerjee and Ors. : AIR 1927 Cal. 874, the Calcutta High Court considered the issue involved herein as to whether after acquisition of the land, it could be put to use for the purposes other than for what it was originally acquired and held that after acquisition, the new owners have the ordinary rights of proprietors and may use their land as they think fit for any purpose, which does not infringe the rights of others and is not inconsistent with the purposes sanctioned by the Statute, under which the land has been taken. While deciding the said case, reliance was placed on the Judgment in Maharaja Luchmeswar Singh v. The Chairman of the Darbhanga Municipality 17 IA 90, wherein the Privy Council upheld the using of land for the purpose other than the purpose for which the land had been acquired. In the said case, the land had been acquired for establishing a public Ghaat but on the part of the said land, a market was established.

24. In Gulam Mustafa and Ors. v. The State of Maharashtra and Ors. : AIR 1977 SC 448 in a similar situation, the Apex Court held as under:

Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the...declaration.

25. This issue has also been dealt with by this Court in the earlier Writ Petition filed by the Rourkela Local Displaced Association (supra) wherein the Judgment of the Hon'ble Supreme Court, dealing with the same acquisition proceedings in Mangal Oram v. State of Orissa : AIR 1977 SC 1456 has been relied upon. In Mangal Oram it was contended on behalf of the land owners that the State Government was not competent to acquire the land under the Act for the establishment of a steel plant. The Apex Court held that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of 'development of industries'. The further contention raised before the Apex Court was that part of the land which were acquired for the purpose of steel plant and ancillary industries were being used as a civil township, when the acquired land could only be used for the steel plant and ancillary industries and not for a civil township. The Court held the same as devoid of force observing as under:

The establishment of a steel plant necessarily postulates the construction of residential quarters for the workmen to be employed in the plant. In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. Lands would likewise be needed for post offices, banks, clubs, parks, cinemas, roads, police stations as also for cremation and burial of the dead. Land would also be needed for a variety of other purposes and civil amenities. A township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.

26. Reiterating a similar view in C. Padma and Ors. v. Deputy Secretary to the Government of Tamil Nadu and Ors. : (1997) 2 SCC 627, the Apex Court held that if by virtue of valid acquisition of land, it stands vested in the State, thereafter claimants are not entitled to restitution of the possession on the ground that either original public purpose is ceased to be in operation or the land could not be used for any other purposes.

27. In Bhagat Singh v. State of U.P. and Ors. : AIR 1999 SC 436; Niladri Narayan Chandradhurja v. State of West Bengal : AIR 2002 SC 2532; and Northern Indian Glass Industries v. Jaswant Singh and Ors. : (2003) 1 SCC 335, the Apex Court held that, the land use can be changed by the Statutory Authority after the land vests in the State free from all encumbrances.

28. In view of the above, the law can be summarised that once the land is acquired it vests in the State free from all encumbrances. It is not the concern of the land owner as how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restitution of land on any ground, whatsoever.

29. The basic question which arises for consideration in this case is as to whether if is permissible for the Petitioner to challenge the acquisition proceedings and also the vires of the Act which stood repealed in 1994, at such a belated stage.

30. When a person challenges Section 4 Notification on any ground, it should be challenged within a reasonable period, and if the acquisition is challenged at a belated stage, the petition deserves to bed is missed only on this count. (Vide Hari Singh and Ors. v. State of U.P. : AIR 1984 SC 1020).

31. A Constitution Bench of the Supreme Court, in Aflatoon and Ors. v. Lt. Governor, Delhi and Ors. : AIR 1974 SC 2077, has observed as under:.To have sat on the fence & allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The Writ Petitions are liable to be dismissed on the ground of laches & delay on the part of the Petitioner.

32. Same view has been taken by the Supreme Court in State of Mysore v. V.K. Kangan : AIR 1975 SC 2190; PT. Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83; H.D. Vora v. State of Maharashtra : AIR 1984 SC 866; Bhoop Singh v. Union of India : AIR 1992 SC 1414; Ram Chand v. Union of India : (1994) 1 SCC 44; State of Orissa v. Dhobei Sethi and Anr. : (1995) 5 SCC 583; State of Maharashtra v. Digambar : AIR 1995 SC 1991; State of Tamil Nadu v. L. Krishnan : AIR 1996 SC 497; and C. Padma v. Deputy Secretary to Govt. of Tamil Nadu : (1997).2 SCC 627.

33. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. : AIR 1997 SC 482, the Supreme Court observed as under:

If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award & possession is taken in furtherance thereof & vest in the State free from all encumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the Writ Petition & when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications.

34. Similar view has been reiterated in State of Rajasthan and Ors. v. D.R. Laxmi and Ors. : (1996) 6 SCC 445, wherein the Apex Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not-permissible at a belated stage. The Apex Court held as under:.Delay in challenging the notification was fatal and Writ Petition entails with dismissal on grounds of laches. It is thus, well-settled law that when there is inordinate delay in filing the Writ Petition and when all steps taken in the acquisition proceedings have become final, the Court should be loathe to quash the notifications.... The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable, time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances.

35. Similar view has been reiterated by the Supreme Court in Northern Indian Glass Industries v. Jaswant Singh, : AIR 2003 SC 234; & Haryana State Handloom & Handicrafts Corporation Ltd. v. Jain School Society AIR 2004 SC 850.

36. The present petition is squarely covered by the Judgment of the Hon'ble Supreme Court in State of Rajasthan and Ors. v. D.R. Laxmi and Ors. : (1996) 6 SCC 445, that even if the proceedings are void, it cannot be declared so at such a belated stage. The Petitioner attained majority in 1988. No explanation could be furnished by the Learned Counsel for Petitioner as to why the Petitioner waited for more than 21 years to approach this Court. Even the earlier petition by the Rourkela Local Displaced Association was filed only in 2005.

37. In the instant case, it is not the complaint of the Petitioner that the provisions of the Act had not been followed and whether the compensation in this case has been received by anybody or not is a question of fact. No evidence has been adduced by the Petitioner to substantiate his averments that his forefathers had not received the compensation. The Act stood repealed in 1994. We are afraid at this belated stage the validity of certain provisions of the Act cannot be allowed to be questioned. More so the Petitioner has not been able to point out any specific provisions of the said Act which are claimed to be ultra vires the Constitution. The relief sought is for declaring the entire Act as ultra vires & unconstitutional.

38. In view of the above, we do not find any force in the submissions of the Learned Counsel for Petitioner. The petition is dismissed.

I. Mahanty, J.

39. I agree.