Orissa High Court

Sasmita Senapati vs Land Acquisition Zone Officer on 10 January, 2023

              IN THE HIGH COURT OF ORISSA, CUTTACK

                           L.A.A No. 44 of 2021

     In the matter of an application under section 74 of the Right to Fair
     Compensation and Transparency in Land Acquisition, Rehabilitation
     and Resettlement Act, 2013.

                        ----------------------------

     Sasmita Senapati                    .......       Appellant


                                     -Versus-


     Land Acquisition Zone Officer,
     Khurda Road, Boudh      .......                   Respondent


         For Appellant           :   Mr. M.K. Mohapatra, Advocate

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



                        ----------------------------

                CORAM: JUSTICE SANJAY KUMAR MISHRA

                                     JUDGMENT

10.01.2023

S.K. MISHRA,J.

1. This Appeal has been preferred against the judgment dated

25.08.2021, passed by the Presiding Officer LAR & R Authority,

Berhampur, in LAR & R Case No. 89 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.

2. Mr. Mohapatra, learned Counsel for the Appellant submits

that the referral court has mis-directed 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/Petitioner 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 Act, 2013 except filing of reference

Petition under Section-64 of the Act.

3. He submits that though the Appellant filed an Application

under Section-64 of the 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, she has been noticed by the

Respondent to receive the compensation amount, which compelled her 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.

4. Learned Counsel for the Petitioner 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 settle

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 she never accepted the

compensation without protest and the protest is very much inherent. To

substantiate his argument Mr. Mohapatra 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.

5. Learned Counsel for the State submits that the said

judgments are not applicable, so far as the present Appeal is concerned

as those judgments have been passed refereeing 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. Hence, the ratio resided by the apex Court, so also coordinate

Bench are not applicable to the present proceeding.

6. 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)

7. 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 ...."

8. 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."

9. 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

25.08.2021, passed in LAR & R Case No. 89 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.

10. As the referral case is of the year 2020, the referral Court is

directed to conclude the proceeding in LAR & R Case No.89 of 2020 at

the earliest, preferably within a period of six months from the date of

communication of the certified copy of the Judgment.

11. Accordingly, the Appeal stands disposed of.