Orissa High Court

Satyanarayan Mahakud vs Land Acquisition Zone Officer on 21 February, 2023

        IN THE HIGH COURT OF ORISSA, CUTTACK

                     LAA No. 42 of 2021

     Satyanarayan Mahakud         .......     Appellant

                             -Versus-
     Land Acquisition Zone Officer,
     Khurdha Road Bolangir New
     B.G. Rail Link Project,
     Dist. Boudh                .......       Respondent

          For Appellant     : Mr. A. Acharya and
                              Mr. M.K. Mohapatra, Advocates

          For Respondent : Mr. G.N. Rout, A.S.C.

                        -----
         CORAM: JUSTICE SANJAY KUMAR MISHRA

___________________________________________________________

       Date of Hearing and Judgment: 21.02.2023
___________________________________________________________

S.K. MISHRA,J.

1. Though the matter is listed under the heading

"For Orders" for consideration of the I.A.s., and the said

I.A.s. are dismissed as withdrawn, learned Counsel for the

Appellant submits that since the issue involved in the

present lis has already been decided by this Court, vide

judgment dated 10th January, 2023, passed in LAA No.44 of

2021, the matter may be taken up for final disposal, to which Mr. Rout, learned Counsel for the State has no

objection.

2. This Appeal has been preferred against the

judgment dated 26.08.2021, passed by the Presiding Officer,

LAR & R Authority, Berhampur, in LAR & R Case No. 75 of

2020, vide which the reference Petition under Section-64 of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement, Act, 2013,

shortly, RFCTLAR & R Act, 2013 was dismissed solely on

the ground that the present Appellant received the awarded

compensation amount without any protest.

3. Mr. Acharya, learned Counsel for the Appellant,

submits that the referral court has misdirected himself in

dismissing the reference petition on the ground that the

Claimant/Appellant has never raised any objection in

writing to the award at any point of time, which is contrary

to the written objection filed by the Respondent under

Annexure-2, wherein the Respondent admitted that the

Appellant has received the compensation under protest.

Further, he submits that there is no express provision

under the RFCTLAR & R Act, 2013 to raise objections after

passing of award by the Collector under Section-37 of the

RFCTLAR & R Act, 2013 except filing of reference Petition

under Section-64 of the RFCTLAR & R Act, 2013.

4. He submits that though the Appellant filed an

Application under Section-64 of the RFCTLAR & R Act,

2013, within the period of limitation of the award stating

therein that the award has been passed behind the back of

the Appellant and subsequent thereafter, he has been

noticed by the Respondent to receive the compensation

amount, which compelled him to receive the same under

protest and claimed for higher compensation by filing the

Petition to refer the matter to the Authority for

determination of the actual amount and additional amount

of compensation for the acquired land, the Respondent,

while denying the aforesaid pleadings in his objection, vide

which it was admitted that the present Appellant/Petitioner

has received the compensation under protest, erroneously

dismissed the application filed under Section-64 of the

RFCTLAR & R Act, 2013.

5. Learned Counsel for the Appellant submits that

even if for the sake of argument, it is accepted that the

Appellant/Petitioner has received the compensation without

any protest, in view of the settled position of law, the very

fact of filing an application for reference by the interested

person (present Appellant) within the stipulated period of

limitation will leave to an inference of fact that he never

accepted the compensation without protest and the protest

is very much inherent. To substantiate his argument,

Mr. Acharya relied on the judgments of the Apex Court in

case of Ajit Singh and Others v. State of Punjab and

Others reported in (1994) 4 SCC 67, Chandra Bhan (Dead)

v. Ghaziabad Development Authority reported in (2015)

15 SCC 343, so also judgment passed by coordinate bench

in case of Bulani Swain v. Special Land Acquisition

Officer M.C.I.I. Project and another reported in (2007)

SCC Online Orissa 167 : (2007) 104 CLT 460 and a recent

judgment of this Court dated 13.12.2022, in case of Sujata

Senapati v. Land Acquisition Zone Officer, Khurda

Road, Boudh in L.A.A. No. 41 of 2021, so also judgment

dated 10th January, 2023 in case of Sasmita Senapati v.

Land Acquisition Zone Officer in LAA No.44 of 2021.

6. Learned Counsel for the State-Respondent

submits that the said judgments are not applicable, so far

as the present Appeal is concerned as those judgments have

been passed referring to the provisions enshrined under

Section-18 of the Land Acquisition Act, 1894, shortly, L.A

Act, 1894, whereas the impugned Order of

rejection/judgment passed by the Court below is in terms of

Section-64 of the RFCTLAR & R Act, 2013.

7. For better appreciation, it is apt to reproduce

below the Section-18(1) of the L.A. Act, 1894, so also

Section-64(1) of the RFCTLAR & R Act, 2013 to demonstrate

that the said provisions are almost similar to each other.

"18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.

64. Reference to Authority.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation

and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested:

Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority:

Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days.

(Emphasis supplied)

8. In case of Ajit Singh and Others (supra), the

apex Court held as follows:

" 5. Having regard to the contiguity of these lands the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is October 4, 1978 while Exh. R-6 is nearer to it, namely, August 16, 1978, in comparison to Exh. A-6 dated January 14, 1977. Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants.

Similarly, in case of Chandra Bhan (Dead) (supra),

referring to the judgment in Ajit Singh and Others (supra),

it was held as follows:

"The principal contention urged by the learned counsel for GDA was that since the compensation was accepted by the claimants without any protest, the reference was not maintainable. In our opinion, this contention is without any substance for several reasons. In Ajit Singh v. State of Punjab2 it was held that since the appellants therein had filed an application for reference under Section-18 of the Act, it manifested their intention. Consequently, the protest against the award of the Collector was implied notwithstanding the acceptance of compensation."

A coordinate Bench in case of Bulani Swain (supra),

referring to the judgment of the apex Court in Ajit Singh

and Others (supra), held as follows:

"5. The learned Counsel for the Petitioner submitted that the Petitioner filed an application for reference under Section 18 of the Act immediately after receiving the compensation amount and considering the said application the Land Acquisition Officer passed the order without giving her an opportunity of hearing. If any such opportunity would have been given to the petitioner, she would have explained that she has protested at the time of receiving compensation. The very fact that she had filed an application for reference immediately after receiving the compensation clearly shows her intention to protest was implied against the award of the Land Acquisition Officer notwithstanding acceptance of compensation. Law is well settled that at the time of deciding the question as to whether a reference can be made or not principle of natural justice should be followed. (See (1994) 4 SCC 67, Ajit Singh v. State of Punjab).

6. The right to seek a reference under Section 18 of the Act is valuable right of the person whose land has been acquired and in the process of deciding an application seeking a reference to the Civil Court, the basic principles of natural justice

are to be observed. As the petitioner has filed an application for reference under Section 18 of the Act that will manifest that intention. xxx ...."

9. This Court, vide judgment dated 13.12.2022, in

case of Sujata Senapati (Supra) held as follows:

"7. That apart, on bare perusal of RFCTLAR & R Act, 2013 vis-a-vis L.A. Act, 1894, it is crystal clear that there is no such specific procedure or form provided under the said acts for recording the protest and the very fact of filing an application for reference by interested person within the stipulated period of limitation, will lead to an inference of fact that the interested person never accepted the compensation without protest and the protest is very much inherent. The right to file a petition for proper assessment of the market value of the land acquired is inherent in the right of ownership of a person to the property that is sought to be acquired by the State, which is the only protection granted to the owner of the land.

On a hyper-technical ground that express protest was not made, on the said basis State cannot deny the land owner, the right to seek reference to the Civil Court for a reasonable compensation. Fair administration of the State demands that they bestow objective approach to such a situation and citizens are not deprived of their property just for hyper-technical reason.

8. Further, the provisions do not prescribe any particular mode of protest. It is also no where postulate that the protest must be in writing. Hence, the referral Court should bear in mind the purport and purpose in reference. As the award of the Collector is nothing but an offer on behalf of the Government, the amount of compensation payable to a person, who is deprived of his property in a Welfare State under the State's right of eminent domain, a person so deprived of his property is entitled to have fair and reasonable amount of compensation with reference to the

true market value of the land as on the date of issuance of notification and the same should not be denied on mere technical plea."

10. In view of the settled position of law, so also the

objection filed by the Land Acquisition Zonal Officer, as at

Annexure-2, which clearly demonstrates that the Appellant

received the awarded compensation amount under protest,

the impugned judgment dated 26.08.2021, passed in LAR &

R Case No. 75 of 2020, is hereby set aside and the matter is

remanded back to the Court below for re-adjudication of the

said case in accordance with law giving opportunity to the

Parties.

11. As the referral case is of the year 2020, the

referral Court is directed to conclude the proceeding in LAR

& R Case No.75 of 2020 at the earliest, preferably within a