Decided on October 03,1978



B.N.Misra, J. - (1.) Petitioners are owners of residential holdings in the Janata Hospital Road within the town of Berhampur in the district of Ganjam and in this application they assail the notification under the Land Acquisition Act, 1 of 1894 (hereinafter referred to as the 'Act') purporting to acquire 1.61 acres of land as per notification dated 23-5-1976. In July, 1964, the State Government had notified their intention to acquire 2.20 acres of land for the purpose of construction of a hostel and staff quarters of the Government Women's College at Berhampur, The said notification was withdrawn on 8-4-1965. Berhampur Town is governed by the Orissa Town Planning and Improvement Trust Act of 1956 (Orissa Act 10 of 1957) and the locality in question has been marked as a residential zone. It is claimed by the petitioners that after withdrawal of the notification for acquisition, several of them have developed the lands in the locality for construction of houses. On 11-4-1970, the State Government again notified for acquisition of 1.90 acres of land for the same purpose and on this occasion they also resorted to the procedure provided under Section 17 of the Act. O. J. C. No. 500 of 1973 was filed in this Court challenging the invoking of the special procedure under Section 17 of the Act. By Judgment dated 7-81974, the notification was quashed. On 23-5-1976, the State Government again notified their intention to acquire 1.61 acres of land out of the lands originally notified for acquisition. On this occasion, the procedure under Section 17 of the Act was not followed. Notice was given under Section 5-A of the Act inviting objections against the proposed acquisition. Thirty-five objections were received and after disposal of the objections, the requisite notification under Section 6 of the Act was made on 13 Aug., 1976 and was published under the authority of the State Government in the State Gazette on 24-8-1976 (vide Annexure-8). Petitioners thereupon filed this application for quashing the notifications under Sections 4 and 6 of the Act and for a direction that the land in question may not be acquired. Petitioners have advanced two contentions in the main that (i) there has been no appropriate enquiry under Section 5-A of the Act and (ii) the purpoted acquisition for the purpose of locating a hostel of a public institution violates the zoning regulation under the Orissa Town Planning and Improvement Trust Act.
(2.) Opposite parties 1 to 4 being the State and its Officers in a common counter affidavit filed on their behalf by the Land Acquisition Officer have claimed that there is great pressure for expanding the Women's College with hostel accommodation and staff quarters; the institution is so located that unless these lands are acquired, there would be no possibility of expansion; it is not open to the petitioners to challenge acquisition by contending that any other site is available and the ultimate choice as to suitability is for the State to decide and petitioners are only entitled to reasonable compensation. It is contended that there was full investigation into the objections and parties had been given appropriate hearing. Though it has been conceded that there has been an approved master plan and the area in question has been reserved for residential localities, variation of the plan has already been proposed and is under consideration of the Government. Petitioners are not entitled to raise objection to the acquisition on the allegation of violation of Section 32 of Orissa Act 10 of 1957. In a separate counter affidavit filed on behalf of opposite parties 5 and 6, it has been stated that the Berhampur Regional Improvement Trust gave a proposal to the State Government to vary the master plan to the extent that a portion of Bijipur mauza which is under dispute and which is marked as residential zone should be marked as public and semi-public zones and this is as provided in Section 32-A of the 1957 Act.
(3.) At the hearing of the application, the records of the Land Acquisition Collector were produced and on verification thereof, Mr. Mohanty for the petitioners does not press the first point, namely that no adequate hearing under Section 5-A of the Act had been given to the petitioners. In view of the fact that the point is not pressed, it is not necessary to refer to the documents and decide the question.;

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