Shree Shree Jagannath vs State Of Odisha And Others
2022 Latest Caselaw 7179 Ori

                       ORISSA HIGH COURT: CUTTACK
AFR
                           W.P(C) NO. 22402 OF 2017

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

Shree Shree Jagannath Mahaprabhu Bije Srikhetra Marfat Uttarparswa Math Endowment Trustee Board ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For petitioner : M/s. U.C. Mohanty, T. Sahoo and B.K. Swain, Advocates.

               For opp. parties    : Mr. S.N. Nayak,
                                     Additional Standing Counsel

          P R E S E N T:

                THE HONOURABLE DR. JUSTICE B.R.SARANGI
                               AND

THE HONOURABLE MR JUSTICE B.P. SATAPATHY

DECIDED ON : 08.12.2022

DR. B.R. SARANGI, J. The petitioner, by means of this writ petition,

seeks to quash the decision of the Government

communicated vide letter dated 28.04.2017 under Annexure-

7 in disallowing the award of solatium, and the consequential

notice dated 10.05.2017 in Annexure-8 issued by opposite // 2 //

party no.3, by order of opposite party no.2, for refund of an

amount of Rs.51,40, 838/-, as well as the letter no.123/LA

dated 02.03.2016 under Annexure-5 of opposite party no.2

issued to the opposite party no.4 and the consequential order

dated 02.03.2016 under Annexure-4, and further seeks to

issue direction to opposite party no.4 for operation of its Axis

Bank Account No. 915010019215714 through its authorized

representative.

2. Briefly stated the facts of the case are that the

Govt. of Odisha in Revenue and Disaster Management

Department, vide its letter dated 06.07.2013, issued

instructions to all the District Collectors regarding direct

purchase of private lands for social development projects

through bilateral negotiation and subsequent thereto further

instructions were also issued vide letter dated 31.3.2014. As

a consequence thereof, the competent revenue authorities

were authorized to file requisition under the Right to Fair

Compensation and Transparency in Land Acquisition and

Rehabilitation and Resettlement Act, 2013 (for short the "Act,

2013") to purchase the lands under the guidelines and also // 3 //

while doing so to give compensation, as admissible in

accordance with the provisions of the Act 2013, including the

assessment of the market value of the land as admissible in

respect of building and structure etc. Accordingly, the officers

were also instructed to obtain non-encumbrance certificate

from the concerned revenue authorities and establishment of

the pure title of the seller over the land should be arrived

before purchase of the land.

2.1 The Government of Odisha in Revenue & Disaster

Management Department issued preliminary notification in

prescribed Form-H under Section 11(1) of the Act, 2013, vide

notification dated 08.01.2015. As per the said notification,

plot nos.276 and 283 under Khata No.303 measuring area

Ac. 0.127 dec. Kissam- Gharabari-1, Mouza- Chudanga Sahi

had been notified. The same had also been published in two

Odia newspapers "Dharitri" and "Tirthakhetra" dated

13.01.2015. Thereby, there was compliance of Section

11(1)(c) of the Act 2013. In addition to the same, the

notification was duly published in the notice boards of the

offices of the Sub-Collector and the Tahasildar. A copy of the // 4 //

same was also sent to the Executive Officer, Puri

Municipality for discussion and for publishing the same in

the notice board. Relating to the aforesaid suit plots for the

purpose of acquisition of land, L.A. Case No.5/2015 was

registered by opposite party no 3.

2.2 On the basis of aforesaid L.A. Case No.05 /2015

the follow up actions were taken by issuing notices to the

RTs (petitioners) regarding the nature of claim and persons

interested on subsequent date, i.e. on 10.03.2015 and also

published declaration vide no.13743/R&DM dated

07.05.2015 under Section 19 of the Act, 2013. Notices were

also issued under Sections 20 and 21 fixing to 11.06.2015

for hearing. Pursuant to such notice, the petitioner appeared

on 11.06.2015 and filed its objection. The District Collector,

Puri, being the Land Acquisition Collector in the proceeding

held on 11.06.2015, considered the measurement made

under Section 20 of the Act, 2013 and the field report

conducted thereon and clarified regarding acquisition of

Ac.0.127 in respect of plot nos.276 and 283 along with

structure standing thereon and also accepted the proposal // 5 //

for revaluation of the structure since it is a new building.

The petitioner, being the owner in possession in respect of

the abovementioned suit plots of the Kisam of Gharabari, the

award was passed by the Collector, while the same was

acquired, and the awarded amount was transferred to the

bank account of the petitioner maintained with opposite

party no. 4, i.e., Bank Manager, Axis Bank, Puri, vide

Account No. 915010019215714.

2.3 In adherence to the guidelines issued on

06.07.2013 and in terms of the Act 2013, the District

Collector, Puri, in consideration of the above mentioned

notification dated 08.01.2015, took steps for acquisition of

land for widening of road keeping in view the Nabakalebar of

Lord Shree Shree Jagannath Mahaprabhu in the Puri Town.

Even though the petitioner, pursuant to such notice, raised

objection, the same was not considered, but its lands were

acquired as per Act, 2013 which came into force with effect

from 01.01.2014. The widening of the road around the Shree

Shree Jagannath Temple was also given post facto approval

by the Govt. of Odisha, vide notification dated 04.02.2016, // 6 //

with reference to letter dated 09.01.2016 of the District

Magistrate & Collector, Puri, as due to shortage of time and

in view of first approaching of Nabakalebar, it was decided in

principle to go for direct purchase of land on negotiation

basis wherein the land owners were not inclined to execute

the agreement with the Executive Engineer (R&B)

Department rather preferred to enter the agreement with the

Collector, Puri for sale of land to have better surety.

2.4 When the land acquisition process reached its

finality with the passing of the award by the District

Collector/ Land Acquisition Collector, Puri, vide award dated

26.05.2015, the District Collector, Puri issued instructions to

the Branch Manager, Axis Bank, opposite party no.4, vide

letter no.123 LA dated 02.03.2016 directing him for

stoppage/withholding of the money mentioned against each

beneficiary kept either in the account mentioned or in any

other account or kept in the form of fixed deposit or any

other instrument, till further instructions issued from him

and the confirmation of withholding of money submitted to

him accordingly. But the same was done without providing // 7 //

any kind of information or opportunity to the petitioner. The

Branch Manager, Axis bank, Grand Road, Puri issued letter

dated 02.03.2016 to the petitioner from which the petitioner

came to know that as per instructions of the District

Collector, Puri the amount lying in the account of the

petitioner in the bank has been withheld.

2.5 The petitioner came to learn from reliable sources

that the Revenue and Disaster Management Department

raised a plea of irregular payment as per the audit objection

and for compliance of the audit objection issued instructions

to the District Collector/Land Acquisition Collector, Puri,

who in its turn also gave reply to the same vide letters dated

09.01.2016, 21.03.2016 and 02.04.2016. The reasons for

withholding amount having not been communicated, the

petitioner to find out the reasons applied for information

under the Right to Information Act, 2005 from the District

Collector/Land Acquisition Collector, Puri, from which it was

revealed that clarifications in compliance to the audit

objection were given by providing letters dated 09.01.2016,

21.03.2016, 02.04.2016 along with the expert opinion dated // 8 //

27.2.2016 given by the Executive Engineer (R&B) Division,

Puri.

2.6 The Government in the Revenue and Disaster

Management Department vide its letter dated 28.04.2017

took a view that the solatium is only to be added to the

compensation payable to any person whose land has been

acquired, i.e., payment of solatium would arise only if the

land of such affected person has been taken over for the

purpose of the project and solatium can be given only to the

land losers and not to otherwise affected persons. Basing

upon such report of the Government, the District Collector/

Land Acquisition Collector, Puri vide notice dated 10.05.2017

directed that the amount of Rs.51,40,838/- paid towards

solatium on the collateral damages of the property of the

petitioner is not payable, as the audit has raised to that effect

objection and, accordingly, the petitioner has to refund the

aforesaid amount. Hence, this writ petition.

3. Mr. U.C. Mohanty, learned counsel appearing for

the petitioner vehemently contended that without adhering to

the provisions contained under Sections 26 to 37 of the Act, // 9 //

2013, instructions issued by the Government in Revenue and

Disaster Management Department, vide letter dated

28.04.2017, cannot be sustained in the eye of law. More so,

the direction for recovery of solatium, having been given

without affording an opportunity of hearing to the petitioner,

also cannot be sustained in the eye of law. Thereby, the

Certificate Officer, without following the provisions of law as

provided under the Odisha Public Demands Recovery Act,

1961 (for short "OPDR Act, 1961") and even without

providing any opportunity of hearing to the petitioner, has

passed an order in issuing the certificate directing the

petitioner for deposit of the amount indicating therein that

for non-payment of the same the property shall be attached

and he will be arrested.

3.1 It is further contended that the Collector, while

passing the award including determination of amount of

compensation, has resorted to the provisions contained

under Sections 26 and 27 of the Act, 2013, and parameters

for the same clearly establish that the damage if any

sustained by the person at the time of the Collector's taking // 10 //

possession of the land, by reason of the acquisition

injuriously affecting his other property, movable or

immovable, in any other manner, or his earnings etc. and the

Collector shall determine the value of the things attached to

the land or building by taking the services of the competent

engineer or any other specialist in the relevant field, as may

be considered necessary by him. Section-30 provides that the

Collector, having determined the total compensation to be

paid, shall to arrive at the final award impose a solatium

amount equivalent to one hundred percent of the

compensation amount, which itself establishes that whatever

the compensation amount finally awarded shall be included

equivalent amount to one hundred percent of the

compensation amount.

3.2 It is further contended that by misinterpreting the

explanation to Section-30, the letter dated 28.04.2017

followed by the notice dated 10.5.2017 were issued, which

cannot be sustained in the eye of law. It is also contended

that the direction of this Court contained in order dated

05.05.2016 passed in W.P.(C) No. 7690 of 2016 has not been // 11 //

complied with. Thereby, direction given for refund/recovery

of Rs.51,40,838/- being arbitrary, illegal and contrary to the

provisions of law, cannot sustain in the eye of law.

3.3 To substantiate his contention, learned counsel

for the petitioner has placed reliance on the judgment of the

apex Court in the case of RB Dealers Private Limited v.

Metro Railway, Koltaka, AIR 2019 SC 3447.

4. Mr. S.N. Nayak, learned Additional Standing

Counsel appearing for the State-opposite parties vehemently

contended that decision of the Government dated

28.04.2017 disallowing the award of solatium and

consequential notice dated 10.05.2017 calling upon the

petitioner to refund Rs.51,40,838/- are well justified. It is

further contended that the schedule land had been acquired

through bilateral negotiation and direct purchase process

following the instructions communicated by the Govt. in

Revenue and Disaster Management Department, vide letters

dated 06.07.2013, 31.03.2014 and 07.02.2014, for the

project "Widening of road around Shree Jagannath Temple,

Puri", in view of Nabakalebar-2015. As per the provisions // 12 //

contained in the Act, 2013, the preliminary notification was

issued under Section-11(1) and public objections under

Section-15(1) were heard and thereafter final declaration

under Section-19 of the Act, 2013 was made by the

Government. Then, notices were issued to the petitioner and

similarly placed land losers to ascertain the nature of their

claim. Accordingly, hearing under Section-21 was conducted

on 11.6.2015, on which date the petitioner along with other

persons also submitted the required information/ documents

relating to the nature of their claim, which were duly

considered and disposed of. Then, compensation was

determined following the provisions of Sections-26, 27, 28 &

29 of Act, 2013. While determining total compensation

amount, to arrive at final award, solatium was assessed at

Rs.93,54,959/- which was equivalent to 100% of the

compensation amount. The consideration amount, as

determined by the Collector and communicated to the

petitioner, was released to the account of the petitioner,

which was opened in opposite party no.4's bank. But A.G.

Audit, on verification of the payment position, raised

objection to the payment of compensation in respect of the // 13 //

structures situated beyond acquired area with equivalent

solatium amount. Taking into consideration the said

objection, it was held that excess expenditure of Rs.2.26

crore has been made by way payment of compensation

towards cost of buildings situated beyond the area of land

acquired. It was also observed by checking 28 L.A. Case

Records (19 direct purchase, and 9 through L.A. process), out

of 53 case records, that transparency has not been

maintained. Land had been acquired for public necessity due

to Nabakalebar Festival, 2015. The process of land

acquisition was completed just before the Nabakalebar, 2015

amidst non-cooperation, resistance and hefty demands for

compensation by persons interested. As regards the

discrepancy in the area of the structure, for which

compensation has been paid, it was further explained to

audit that the valuation of the structure can never be limited

to the plinth area of the building, as the building standing on

the area acquired had extended structures which were

actually assets attached to the building and were injuriously

affected by way of taking possession. It was further explained

that once the building is dismantled, particularly in case of // 14 //

archaic buildings involved in the land acquisition process, it

has to affect the very basic structure of the building where

collateral damage was inevitable necessitating payment of

compensation for such damaged area, consisting assets

attached to the building. In support of such explanation,

documentary evidence, such as, photographs, C.Ds. were

also submitted to audit. But such explanation was not

accepted by the audit and steps were taken for refund of the

solatium amount. Consequentially, no illegality or irregularity

has been committed. Thereby, the writ petition has to be

dismissed.

5. This Court heard Mr. U.C. Mohanty, learned

counsel appearing for the petitioner and Mr. S.N. Nayak,

learned Additional Standing Counsel appearing for the State-

opposite parties in hybrid mode and perused the records.

Pleadings have been exchanged between the parties, with the

consent of learned Counsel for the parties the writ petition is

being disposed of finally at the stage of admission.

6. The sole question that arises for consideration

before this Court, on the basis of the pleadings available on // 15 //

record, is that whether determination for payment of

compensation including the solatium can be made in terms of

the provisions contained in the Act, 2013 or not, and if so,

whether the instructions issued by the Revenue and Disaster

Management Department dated 28.04.2017 for refund of the

amount of solatium already paid is well justified or not.

7. It is the admitted fact that the land and the

building standing thereon were acquired under the Act, 2013

in the greater public interest of widening the road around

Shree Jagannath Temple, Puri in view of Nabakalebar-2015.

Thus, acquisition having been made by following the due

procedure prescribed under the Act, 2013, the amount of

compensation was paid to the petitioner by depositing the

same with the opposite party no.4-bank, which maintains the

account of the petitioner. But due to audit objection, now

direction has been given for refund of such amount which

had been deposited towards solatium. Several clarifications

have been made, as mentioned above, that the petitioner is

not entitled to get solatium and, therefore, liable to refund the

amount paid to him, in view of the audit report. It is not in // 16 //

dispute that without giving any opportunity to the petitioner

and without complying with the principles of natural justice,

all of a sudden the District Magistrate-cum-Collector, Puri

issued direction on 10.05.2017 to opposite party no.4, i.e.,

the Axis Bank not to disburse the amount to the petitioner.

Consequentially, the account of the petitioner has been

ceased/freezed and not made operational depriving the

petitioner to avail the benefit granted to him. If the audit has

made some objection for payment of solatium, there is no

valid and justifiable reason not to give opportunity of hearing

to the petitioner before issuance of any instruction to

opposite party no.4 to cease/freeze the account. Furthermore,

if it is the admitted fact that the land and building standing

thereon had been acquired and due compensation was paid

to the petitioner including solatium, in that case, merely

because an objection was raised by the audit, instructions

cannot be issued by the Government for refund of the

solatium already paid to the petitioner, contrary to the

provisions of law as envisaged under the Act, 2013.

// 17 //

8. Before delving into the question posed, it is

necessary to examine the meaning of 'solatium' as defined in

various English dictionaries.

In Chambers Dictionary, the word 'solatium' has

been defined to mean compensation for disappointment,

inconvenience wounded feelings.

According to Cambridge Dictionary, 'solatium'

means something, for example money, that is given to

someone to make them feel better when they have suffered in

some way.

In Collins English Dictionary, the word 'solatium'

means compensation awarded to a party for injury to the

feelings as distinct from physical suffering and pecuniary

loss.

8.1 In March v. City of Frankston, (1969) VR 350,

while considering Section 26 of Valuation of Land Act, 1960,

as amended by the Valuation of Land (Appeals) Act, 1965, it

was held as follows:-

// 18 //

"'Solatium' is an expression apt to describe an award of some amount to cover inconvenience and, in a proper case, distress caused by compulsory taking. It is quite inapt to describe an amount awarded for provable loss to which the claimant is entitled."

8.2 In Narain Das Jain v. Agra Nagar Mahapalika,

(1991) 4 SCC 212, the apex Court held has follows:-

"Solatium' is a 'money comfort' qualified by the statute and given as a conciliatory measure for the compulsory acquisition of land of the citizen, by a welfare state such as India."

It was further clarified as follows:-

"Solatium' is a 'money comfort' qualified by the statute and given as a conciliatory measure for the compulsory acquisition of land of the citizen, by a welfare state such as ours."

The above view has also been taken by the apex

Court in Panna Lal Ghosh v. Land Acquisition Collector,

(2004) 1 SCC 467.

9. Taking into account the above meaning attached to

the word 'solatium', the inevitable conclusion is that it is in

the nature of compensation especially damages for sorrow

mental agony or wounded feeling. In other words, it is

consolation, compensation and sentimental damages paid to // 19 //

a party whose land has been acquired. It can also be

explained that sum paid to an injured party over and above

actual damages by way of solace to his wounded feeling.

10. Therefore, there is no iota of doubt that the

petitioner's land and the building standing thereon, which

was situated adjacent to Shree Shree Jagannath Temple,

having been acquired, there must be injuries to the feelings

and sentiments of the petitioner. As a consequence thereof,

solatium was paid, along with the compensation amount, by

depositing the same in the account of the petitioner with

opposite party no.4. After having deposited the amount, the

opposite parties no. 2 and 3 should not have issued

instructions to opposite party no.4-bank with regard to

cessation of the bank account causing undue hardship to the

petitioner.

11. It is of relevance to note that the authorities have

determined the compensation as per the provisions contained

under Sections-26, 27, 28 and 29 of the Act 2013 and

solatium at the rate of 100% over the total compensation

amount determined and payable under Section-30(3) of the // 20 //

Act, 2013. The determination of the final award shall be

different than that of the determination of amount of

compensation. The amount of compensation is one part of the

final award. But there are three components, namely, the

compensation amount plus additional amount calculated @

12% per annum as per Section-30(3) of the Act, 2013 and

solatium as per Section-30(3) of the Act, 2013. Therefore, if

the amount has been determined and solatium has been

paid, as contemplated under Sub-section (1) of Section-30 of

the Act, 2013 and the same has been calculated only on the

market value of the land, i.e., total compensation amount as

determined under Sections-26, 27 and 28 of the Act, 2013.

Therefore, the question of refund of such amount by issuing

administrative instructions by the Department of Revenue

and Disaster Management cannot sustain in the eye of law.

12. In R.B. Dealers (supra), the apex Court, referring

to the provisions of law as provided under Sections-26 to 30

and Section-69(3) of the Act, 2013, held that before the final

award is passed by the Collector, the Collector has to

determine the market value of the land as provided // 21 //

under Section-26 of the Act and as per Section-27 read with

the parameters of Section-28 and the determination of the

value of the things attached to the land or building shall be

as per Section-29 of the Act, 2013. The Collector, while

passing the final award as per Sections-26, 27 and 28, has to

award a solatium amount equivalent to 100% of the

compensation amount as per Sections-29 and 30 of the Act,

2013. The land owners, whose lands have been acquired, are

also entitled to, in addition to the market value of the land,

an additional amount @ 12% as per Section-30(3) of the Act,

2013.

13. In view of the aforesaid law laid down by the apex

Court, the determination of the amount of compensation

made by the Collector and the Land Acquisition Officer

towards acquisition of the land and building standing thereon

and payment made to the petitioner, is well justified and, as

such, the same has attained its finality as per Section-37 of

the Act, 2013. Merely because an audit objection was raised,

the authorities have directed not to operate the bank account

and that itself cannot sustain in absence of compliance of // 22 //

due procedure of law and principles of natural justice. It is

well settled law, as laid down by the apex Court time and

again, that mere objection raised by audit cannot form

foundation for recovery or stoppage of money in absence of

any proper inquiry as per law.

14 The basic principle behind the audit report cannot

be used as a substantive evidence of the genuineness of the

bona fide nature of the transaction referred to in the

accounts. Audit is official examination of the accounts in

order to make sure that the accounts have been properly

maintained according to the prescribed mode. Audit report is

a statement of facts pertaining to the maintenance of

accounts coupled with the opening of the auditor in respect

thereto based on those facts. Therefore, that cannot be a

ground for issuance of instructions to the bank not to allow

the petitioner to operate its account. If the petitioner is

otherwise entitled to get the solatium as per the provisions

contained under Section-30(3) of the Act, 2013 and the same

has been paid in due adherence to the provisions of law, that

cannot be recovered or refunded on the basis of the // 23 //

instructions issued by the Revenue and Disaster

Management Department, vide letter dated 28.04.2017, that

too on the basis of the audit conducted by the authorities.

15. It is well settled principle of law laid down by the

Privy Council and the apex Court that if the statute

prescribes a thing to be done in a particular manner the

same should be done in that manner or not at all.

In Taylor v. Taylor, (1876) 1 Ch D 426, it was laid

down that where a power is given to do a certain thing in a

certain way the thing must be done in that way or not at all.

Other methods of performance are necessarily forbidden. This

doctrine has often been applied to Courts.

In Nazir Ahmed v. King Emperor, AIR 1936 PC

253, law is well settled "where a power is given to do a certain

thing in a certain way the thing must be done in that way or

not at all. Other methods of performance are necessarily

forbidden."

// 24 //

In Commissioner of Police, Bombay v.

Gordhandas Bhanji, AIR 1952 SC 16, the apex Court held

as follows:-

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Similar view has also been taken by the apex Court in J&K

Housing Board v. Kanwar Sanjay Krishan Kaul, (2011) 10

SCC 714.

In State of Rajasthan v. Jagdish Narain

Chaturvedi, (2009) 12 SCC 49, the apex Court held that in

case of conflict between the statutory rules and

administrative instructions, the former shall prevail. No

administrative instructions can override statutory rules.

In Joint Action Committee of Airlines Pilots

Associations of India v. Director General of Civil

Aviation, (2011) 5 SCC 435, the apex Court held that the

executive instructions are issued for guidance and to // 25 //

implement the scheme of the Act and do not have the force of

law, can be issued by the competent authority and altered,

replaced and substituted at any time.

In K.H. Siraj v. High Court of Keral, (2006) 6

SCC 395, the apex Court held that executive instructions can

always supplement the rules which may not deal every aspect

of a matter.

In view of the above, the administrative

instructions/executive instructions issued by the Revenue

and Disaster Management Department dated 28.04.2017 are

contrary to the statutory provisions contained uner Sections

26, 27, 28, 29 and 30 of the Act, 2013 and thus cannot

sustain in the eye of law.

16. Considering from other angle, due to restrictions

imposed for operation of the account of the petitioner, undue

hardship has been caused. On the one hand, the land and

building, where the petitioner was residing, was acquired and

demolished which made him homeless, and on the other

hand, instructions have been issued to the bank not to allow

the petitioner to operate the bank account on flimsy ground, // 26 //

which gravely affects the petitioner's right to live, as

enshrined under Article 21 of the Constitution of India.

17. In Narendra Kumar v State of Haryana, (1994)

4 SCC 460: AIR 1995 SC 519, the apex Court held that right

to livelihood is an integral facet of the right to life.

18. In Francis Carlie Mullian v. Administrator,

Union Territory of Delhi, AIR 1981 SC 746 : (1981) 1 SCC

608, the apex Court held that every citizen has a right to live

with human dignity.

19. In Menaka Gandhi v. Union of India, (1978) 1

SCC 248 : AIR 1978 SC 597, the apex Court held that Article

21, if read literally, is a colourless article and would be

satisfied, the moment it is established by the State that there

is a law which provides a procedure which has been followed

by the impugned action. But the expression 'procedure

established by law' in Article 21 has been judicially construed

as meaning a procedure which is reasonable, fair and just.

20. The term 'life' used in Article 21 of the Constitution

of India has a wide and far reaching concept. In Board of // 27 //

Trustees of the Port of Bombay v. Dilipkumar

Raghavendranath Nadkarni, (1983) 1 SCC 124: AIR 1983

SC 109, the apex Court held that life means something more

than mere animal existence and the inhibition against the

deprivation of life extends to all those limits and faculties by

which life is enjoyed.

21. In Chameli Singh v. State of Uttar Pradesh,

(1996) 2 SCC 549 : AIR 1996 SC 1051, the apex Court held

that right to life means to live like a human being and it is

not ensured by meeting only the animal needs of man. It

includes right to live in any civilized society implies the right

to food, water, decent environment, education, medical care

and shelter. It is further held that right to shelter when used

as an essential requisite to the right to live should be deemed

to have been guaranteed as a fundamental right. As it

enjoined in the directive principles, the State should be

deemed to be under an obligation to secure it for its citizens.

22. In P.G. Gupta v. State of Gujarat, 1995 Supp (2)

SCC 182, the right to shelter has also been defined by the

apex Court.

// 28 //

23. Therefore, taking into consideration the very

purpose behind Article 21 and applying the same to the

present context, it is amply clear that once the compensation

amount has been determined and awarded to the petitioner

in accordance with the Act, 2013, subsequent thereto, on the

basis of audit objection, so far as solatium part is concerned,

the opposite parties cannot ask for refund of the same. That

by itself forms part of the award amount as per provisions

contained in Section-30(3) of Act, 2013. More so, the meaning

attached to the word 'solatium', as discussed above, is crystal

clear. For generation to generation the petitioner had been

residing adjacent to Shree Shree Jagannath Temple. The land

and building standing thereon was acquired for the greater

public interest. Thereby, while parting with the land as well

as the building, the emotion, the sensitiveness, the thoughts

of the petitioner attached to that place has been injured. The

same was assessed in terms of money and paid to the

petitioner towards solatium. Therefore, under no

circumstance, the State has got any right to recover such

solatium awarded in favour of the petitioner and, as such, the

consequential direction so given not to operate the bank // 29 //

account cannot also sustain. Thereby, the impugned decision

dated 28.04.2017 taken by the Government under Anenxure-

7 disallowing the award of solatium, being violative of

Section- 30(3) of the Act, 2013, and the consequential notice

issued on 10.05.2017 vide Anenxure-8 by opposite party

no.3, by order of opposite party no.2, to refund the solatium

amount, cannot sustain, as the same are contrary to the

provisions contained under Sections-26 to 30 of the Act,

2013. As a consequence thereof, the said orders are hereby

quashed and the opposite parties are hereby directed to allow

the petitioner forthwith to operate its Axis Bank Account No.

915010019215714 through its authorized representative.

24. In the result, the writ petition is allowed. However,

there shall be no order as to costs.

(DR. B.R. SARANGI) JUDGE

B.P. SATAPATHY. I agree.

(B.P. SATAPATHY) JUDGE

Orissa High Court, Cuttack The 8th December, 2022, Arun/GDS