Prahallad Sahu vs Land Acquisition Zone Officer
2023 Latest Caselaw 539 Ori

           IN THE HIGH COURT OF ORISSA, CUTTACK

                         L.A.A No. 8 of 2022

     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.

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

     Prahallad Sahu                  .......             Appellant


                                 -Versus-


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


               For Appellant             :     Mr. S.K. Joshi, Advocate

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



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

             CORAM: JUSTICE SANJAY KUMAR MISHRA

                                JUDGMENT

17.01.2023

S.K. MISHRA,J.

1. Though the matter is listed under the heading "Fresh

Admission", in view of the limited issue, as pointed out in the

ground of appeal, so also the recent judgment passed by this Court

and cited by the learned Counsel for the Appellant, the matter is taken up at the stage of fresh admission for final disposal on

consent of the learned Counsel for the parties.

2. This Appeal has been preferred against the judgment

dated 27.08.2021, passed by the Presiding Officer LAR & R

Authority, Berhampur, in LAR & R Case No. 82 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 and never gave any written objection at any point of time,

for which has no cause of action in his favour.

3. Mr. Joshi, 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. To substantiate his argument, Mr. Joshi files a photo

copy of the objection filed by the Land Acquisition Zonal Officer,

Boudh, dated 04.05.2020, wherein it has been clearly indicated 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.

4. He submits that though the Appellant filed an

Application under Section-64 of the Act, 2013 but the same was

illegally dismissed vide Order dated 27.08.2021, though it is the

stand of the Appellant before the Court below that being noticed by

the Respondent U/S-37(2) to receive the compensation amount, the

Appellant was being compelled 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.

Mr. Joshi further submits that though the Respondent, while

denying the higher compensation in his objection, admitted that the

present Appellant/Petitioner has received the compensation under

protest, the Court below erroneously dismissed the application filed

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

lack of cause of action.

5. 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 Appellant never accepted the compensation without

protest and the protest is very much inherent. To substantiate his

argument Mr. Joshi 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.

6. 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.

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. It is pertinent to reproduce below one of the paragraphs

of the objection dated 04.05.2020, filed by the Land Acquisition

Zonal Officer, Boudh:

"That in reply to Para No. 2, the Land Acquisition Collector has issued notices u/s 21(4) of the act vide PR No.1181/ Date 19.11.19 stating that the Government intends to take possession of the land and that claims to compensations and rehabilitation and resettlement for all interest in such land may be paid to him. The notice has been published at all designated places. The Recorded Tenant was issued the notice and Sri Prahalad Sahu has received the notice. Also notice of awards u/s 37(2) of the act has been issued at all designated places and Sri Baisyananda Sahu has received the notice. The petitioner has received the compensation under protest. Hence the claim of the petitioner that the award has been passed behind the back of the petitioner is not true."

(Emphasis supplied)

11. In view of the settled position of law, so also the objection

filed by the Land Acquisition Zonal Officer, which clearly

demonstrates that the Appellant received the awarded

compensation amount under protest, the impugned judgment dated

27.08.2021, passed in LAR & R Case No. 82 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.

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

is directed to conclude the proceeding in LAR & R Case No.82 of

2020 at the earliest, preferably within a period of six months from

the date of communication of the certified copy of the Judgment.

13. Accordingly, the Appeal stands disposed of.

...................................

S.K. MISHRA, J.

Orissa High Court, Cuttack The 17th January, 2023/Banita