Allowed

Jani Senapati v. Land Acquisition Zone Officer.

Orissa HC20 Dec 2023LAA/7/2022

Case brief

AI extract

What is this about?

The High Court of Orissa allowed an appeal against a Land Acquisition Referral and Reference court judgment that had declined to determine compensation valuations on technical grounds. The court held that the lower court erred in not adjudicating merit issues regarding land value and compensation when the cause of action was admitted, remanding the matter for fresh adjudication.

What did the court decide?

The impugned judgment dated 27.08.2021 was set aside and the matter remitted to the court below for re-adjudication within four months.

Jani Senapati Vs Land Acquisition Zone Officer. — Land Acquisition | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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LAA No.7 of 2022

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Jani Senapati ....... Appellant -VersusLand Acquisition Zone Officer, Khurda Road Bolangir New B.G., Rail Link Project, Boudh ....... Respondent For Appellant : Mr. S.K. Joshi, Advocate For Respondent : Mr. B. Panigrahi, ASC ................... CORAM: JUSTICE SANJAY KUMAR MISHRA _____________________________________________________________ Date of Hearing and Judgment: 20.12.2023 _____________________________________________________________ S.K. MISHRA, J.

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1. This appeal has been preferred against the judgment date 27.08.2021 passed in LAR & R Case No.92 of 2020, by the Court of LAR & R Authority, Berhampur, vide which, the referral Court did not answer point 3 and 4 on the plea that since issue no.1 as to cause of action

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was answered against the present Appellant, who is the Petitioner before

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the court below, there is no scope to answer point no.3 and 4.

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Page 1 of 8

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2. Mr. Joshi, learned Counsel for the Appellant, relying on the judgment of this Court dated 17.01.2023, in LAA No.8 of 2022 submits, case of the present Appellant is squarely covered by the said judgment.

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3. Mr. Joshi further submits, admittedly the present Appellant, though accepted the awaited amount, as awarded by the Land Acquisition Collector, as required under Section-64 of the Act, 2013, he objected to such payment of compensation amount on the ground that the same is not in terms of Sections-26 to 30 of the Act, 2013 and on being so objected to, matter was referred to the court below, which ought to have acted in terms of Section-69 of the Act, 2013. Instead of doing so, the court below mechanically answered issue no.1 against the present Appellant (Petitioner before the court below), indicating in the impugned judgment that the Petitioner did object to the awarded amount, while a notice under Section-37(2) was served on him so also during preparation of the award in Form K and lastly, not even objected the said award, while the payment was received by him through CC voucher. Simply it was pleaded in Para-2 of the application submitted before the Collector that the Petitioner was being compelled to accept the same with protest.

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4. Mr. Joshi submits, the court below also was incorrect to observe in the impugned judgment that the procedure adopted by the present Appellant (Petitioner before the court below) is unknown to law and the

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objection to the award should have been reflected in the notice under Section-37(2) of the Act, 2013, when it was served on him and thereafter objection ought to have been reflected in Form-K (Award) so also CC Voucher, when the payment was received by the Petitioner.

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5. In response to the submissions made by Mr. Joshi, Mr. Panigrahi, learned ASC submits, in LAA No.8 of 2022 the Respondent/Petitioner before the court below, received the awaited compensation amount under protest. But in the present case , the Appellant received the awaited

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compensation amount without any protest, as has been observed by the

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court below.

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6. Mr. Panigrahi further submits, the court below has rightly refused

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to answer point nos.3 & 4 on the plea that no cause of action arose and there is no scope to decide the matter relating to point nos.3 & 4.

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7. In view of the submissions made by the learned counsel for the parties, it would be apt to reproduce bellow the points formulated by the

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court below in LAR & R Case No.92 of 2020:

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“Points of Disputes

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(i) Has the petitioner any cause of action to move the Authority U/S-64(1) of RFCTLAR&R Act, 2013?

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(ii) Whether the petitioner has come to the forum within prescribed period of limitation as contemplated U/s64(2) of RFCTLAR&R Act, 2013?

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(iii) Whether valuation of Atta Varity of land of Rs.50,00,000/- (Rupees Fifty lakh) only?

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Page 3 of 8

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(iv) Whether the petitioner was awarded with less compensation than the existing market value in the locality?”

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8. Since point no.1 was answer against the Appellant (Petitioner

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before the court below) admittedly, the court below came to a conclusion that there is no cause of action, hence there is no scope to decide point

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nos.3 & 4, which have been extracted above.

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9. At this juncture, it would be apt to reproduce below Sections-64 and 69 of the Act, 2013.

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“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:

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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:

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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.

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(2) The application shall state the grounds on which objection to the award is taken:

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Provided that every such application shall be made—

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(a) person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector‘s award;

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(b) in other cases, within six weeks of the receipt of the notice from the Collector under

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section 21, or within six months from the date of the Collector‘s award, whichever period shall first expire:

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Provided further that the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso.

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69. Determination of award by authority .–(1) In determining the amount of compensation to be awarded for land acquired including the Rehabilitation and Resettlement entitlements, the Authority shall take into consideration whether the Collector has followed the parameters set out under section 26 to section 30 and the provisions under Chapter V of this Act.

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(2) In addition to the market value of the land, as above provided, the Authority shall in every case award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the preliminary notification under section 11 in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.

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Explanation.—In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.

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(3) In addition to the market value of the land as above provided, the Authority shall in every case award a solatium of one hundred per cent. over the total compensation amount.”

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(Emphasis supplied)

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10. Admittedly, the Appellant, who is Petitioner before the court

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below, filed a petition before the Collector as prescribed under Section 64-(2) of the Act, 2013. The Land Acquisition Collector did not refuse to

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refer the matter to the referral court on the ground that the petitioner received the awarded compensation amount without protest. Rather,

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Appellant’s application filed under Section-64 of the Act, 2013, was referred to the court below by the Land Acquisition Collector. Law is well settled that once a reference is made, it has to be determined in terms of Section-69 read with various provisions enshrined under Section 26-30 of the said Act, 2013.

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11. So far as protest/objection to be made by the land owner, this Court, in its judgment dated 17.01.2023, passed in LAA No.8 of 2022, relying on the judgments of the apex Court in the case of Ajit Singh and

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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 of this Court in the 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 the case of Sujata Senapati v. Land Acquisition Zone Officer, Khurda Road, Boudh in L.A.A. No. 41 of 2021, vide paragraph-9 of the said judgment held as follows:

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“9. This Court, vide judgment dated 13.12.2022, in case of Sujata Senapati (Supra) held as follows:

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“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

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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.

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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.

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Further, the provisions do not prescribe any particular mode of protest. It is also nowhere 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 .”

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(Emphasis supplied)

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12. From the above said provisions under the Act, 2013 so also the settled position of law, as has been detailed in the judgment dated 17.01.2023 passed in LAA No.8 of 2022, this Court is of the view that the court below was not justified to answer issue no.1 against the Appellant (Petitioner before the court below) thereby, declining to answer point Nos.3 & 4 on merit.

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13. Hence, the impugned judgment dated 27.08.2021 passed in LAR & R Case No.92 of 2020 is here by set aside and the matter is remitted back to the court below for re-adjudication of the same in accordance with law, giving further opportunity of hearing to the parties, if so required.

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14. As the referral case is of the year 2020, the court below shall do well to conclude the proceeding in in LAR & R Case No.92 of 2020 at the earliest, preferably within a period of four months from the date of

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production/ communication of the certified copy of this order.

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Accordingly, the Appeal stands disposed of.
…….……………………
S.K. MISHRA, J.

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Orissa High Court, Cuttack. Dated, 20^th December, 2023/ Banita

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Signature Not Verified

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Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: JR. STENOGRAPHER Reason: AUNTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 23-Dec-2023 11:58:41

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Jani Senapati v. Land Acquisition Zone Officer.

Case brief

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Jani Senapati v. Land Acquisition Zone Officer.

Case brief

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