Maduka Majhi Vs State of Odisha

IN THE HIGH COURT OF ORISSA, CUTTACK

L.A.A. No.50 of 2023

Rama Chandra Goud ....... Appellant -VersusState of Odisha ....... Respondent L.A.A. No.51 of 2023 Saraswati Baroi (Dead) & Anr. ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.52 of 2023 Jadu Goud & others ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.53 of 2023 Sashi Goud & others ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.54 of 2023 Hari Goud ....... Appellant -VersusState of Odisha ....... Respondent L.A.A. No.55 of 2023 Mukunda Majhi & another ....... Appellants -VersusState of Odisha ....... Respondent

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L.A.A. No.50 of 2023 & batch

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L.A.A. No.56 of 2023

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Golapi Majhi ....... Appellant -VersusState of Odisha ....... Respondent L.A.A. No.57 of 2023 Durbal Goud and Another ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.58 of 2023 Maduka Majhi ....... Appellant -VersusState of Odisha ....... Respondent L.A.A. No.59 of 2023 Koushalya Goud & ors ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.60 of 2023 Sashi Goud & others ....... Appellants -VersusState of Odisha ....... Respondent L.A.A. No.61 of 2023 Jagat Goud & another ....... Appellants -VersusState of Odisha ....... Respondent

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L.A.A. No.50 of 2023 & batch

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Advocate for the parties

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For Appellants : Mr. A. K. Pattajoshi, Advocate (In all the Appeals)

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For Respondent : Ms. S., Devi, ASC (In all the Appeals)

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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Date of Hearing & Judgment: 07.12.2024

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S.K. MISHRA, J.

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1. This Appeal along with batch of Appeals, which are on board, have been preferred challenging the identical orders passed by the Land Acquisition, Rehabilitation, Resettlement Authority, Berhampur, shortly, the Referral Court, in various LAR and R Cases, vide which the Reference Petitions filed under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, shortly, hereinafter ‘the Act, 2013’, were dismissed on the ground that under Section 64 of the Act, 2013, the Land Acquisition Collector is empowered to entertain the application even after expiry of period of limitation, but the said limitation can only be

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extended for a period of one year as per the proviso to Section 64 (2) (b) of the Act, 2013 and the applications preferred by the Appellants before the Land Acquisition Officer are time barred and therefore, the references are invalid.

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2. Since the issue in all these Appeals is regarding delay, on which ground all the Appeals stood dismissed, on consent of the learned Counsel for the parties, all the Appeals are taken up together for hearing and disposal vide this common judgment. For convenience, L.A.A. No.50 of 2023 is taken up as the lead Appeal.

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3. The L.A.A. No.50 of 2023 has been preferred challenging the rejection order dated 20.10.2023 passed by the Referral Court in LAR&R Case No.147 of 2023, vide which the Petition filed by the Appellant (Petitioner before the Court below) under Section 64 of the Act 2013 stood rejected solely on the ground that the same is time barred.

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4. The factual matrix, which led to filing of the present Appeal, as pleaded in the Memorandum of Appeal, is that in the year 2016, the land of the Appellant was acquired by the State for the purpose of construction of canal under Ret Irrigation Project vide L.A. Case No.15 of 2016. The Appellant was awarded compensation in respect of the said acquisition on 09.06.2017,

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which he received under protest. The Appellant, who is an illiterate, innocent and rustic villager, having no knowledge of legal intricacies, approached various authorities for enhancement of compensation. However, after receiving the awarded amount, he filed a written objection before the Special Land Acquisition Officer, Ret Irrigation Project (Present Respondent) for enhancement of the compensation. The Respondent did not accept his written objection, as the same was not in proper format in accordance with the provisions under the Act, 2013. Thereafter, the Appellant consulted with his Counsel and finally on 04.12.2017, filed a Reference Petition under Section 64 of the Act, 2013. The Respondent, after finding the same to be in order and within the limitation period, accepted the said Reference Petition on 03.02.2018 and entered the same in the diary vide Serial No.314 dated 03.02.2018. Thereafter, the Respondent kept the said Reference Petition of the Appellant under cold storage and did not refer it to the Court of the LAR&R Authority, Berhampur within the stipulated period, as prescribed under Section 64 of the Act, 2013.

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5. As the Reference Petition was filed by the Appellant without affidavit, in the month of January, 2023, the Respondent asked the Appellant through his Counsel to file a consolidated

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Reference Petition supported with an Affidavit. Hence, acting upon the instruction of the Respondent, on 17.01.2023, the Appellant filed a consolidated Reference Petition before the Respondent supported with an Affidavit. Thereafter, the said Petition was referred to the Court of LAR&R Authority Berhampur, vide LAR&R Case No.147 of 2023 along with a Petition under Section 5 of the Limitation Act for condonation of delay without enclosing thereto the original Reference Petition dated 04.12.2017 filed by the Appellant. After the reference was made by the Respondent, without noticing the present Appellant, enabling him to answer the subject matter of dispute, the Court below proceeded to dispose of the said case at the instance of the Respondent only referring to the consolidated Reference Petition dated 17.01.2023. The referral Court was under misconception that the Appellant has filed the Reference Petition after a lapse of 5 years. Accordingly, the Court bellow dismissed LAR&R Case No.147 of 2023 on 20.10.2023.

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6. Heard learned Counsel for the Appellant so also the learned State Counsel for the Respondent.

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7. Learned Counsel for the Appellant, drawing attention of this Court to the original Reference Petition dated 04.12.2017, filed under Section 64 of the Act, 2013, which has been

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appended to the Memorandum of Appeal as Annexure-2, submitted that the Appellant received the compensation amount on 31^st May, 2017, whereas the Reference Petition under Section 64 of the Act was submitted on 4^th December, 2017, which is well within the time. But subsequently the said application was amended and the consolidated petition supported with the verification and Affidavit was filed on 17^th January, 2023. But the Respondent, while referring the matter to the Court below, neither disclosed the said fact in the application for condonation of delay filed under the Limitation Act, 1963 nor produced the said initial application filed by the Appellant under Section 64 of the Act, 2013, for which the referral Court was of the view that the petition filed under Section 64 is grossly barred by limitation, with an observation that how the present Respondent entertained the application after a long gap of 5 years and 7 months.

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8. Learned Counsel for the Appellant further submitted that the lapses are on the part of the Respondent for not disclosing about the original application filed by the Appellant under Section 64 of the Act 2013 in the application for condonation of delay filed under Section 5 of the Limitation Act so also non-forwarding of the said petition to the Court below.

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9. Per contra, learned Counsel for the State-Respondent submitted that though there is a long delay of 5 years 7 months in filing the application under Section 64 of the Act, 2013, the said delay was not properly explained in the application filed under Section 5 of the Limitation Act by the learned GP. Further, it was never disclosed before the referral Court regarding filing of the initial application under Section 64 of the Act, 2013 on time. Hence, the referral Court was justified to reject the Section 64 application on the ground of long delay. 10. Section 64(1) of the Act, 2013 mandates that any person interested, who has not accepted the award may, by written application to the Collector, required the matter be referred by the Collector for determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is payable, the rights of rehabilitation and resettlement under Chapters V & VI or the apportionment of the compensation among the persons interested.

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11. The first Proviso under section 64(1) of the Act, 2013 mandates that, on receiving such written application, the Collector shall, within a period of thirty days from the date of

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receipt of the application, make a reference to the appropriate Authority.

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12. So far as second Proviso under 64(1), provides further that where Collector fails to make such reference within a period so specified, the Applicant may apply to the Authority, as the case may be, requesting to direct the Collector to make the reference to it within a period of 30 days.

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13. Proviso under section 64(2) mandates that every such application under section 64(1) shall be made, if the 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 and in other cases, within six weeks of receipt of the notice from the Collector under section 21, or within six months from the date of the Collector’s award, which ever period shall first expire.

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14. The second Proviso under section 64(2) prescribes 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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15. Section 64 of the Act, 2013, being relevant for determination of the present lis, is extracted below:-

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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

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which objection to the award is taken:

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Provided that every such application shall be made—

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(a) if the 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 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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(Emphasis supplied)

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16. As is revealed from the record, including LCR, the present Appellant filed written application in terms of section 64(1) before Collector, which is dated 04.12.2017, was duly registered in the Diary of the LAR & R Authority Berhampur on 03.02.2018, vide Diary No.314.

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17. It is further revealed from the record that the LA & RO, RIP Kusumkhunti, Kalahandi filed an application under section 5 of the Limitation Act before the Court of LAR & R Authority Berhampur (Referral Court) admitting the delay and laches at the office level, in not referring the petition under section 64 of the Act, 2013 to the concerned Referral Court in time. The contents of paragraph no.2 of the said petition, being relevant, is extracted

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below:-

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“2. That there is delay in filing the referral petition due to the reasons

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I. Due to heavy impact of COVID-19 all over the Country the reference petition could not be submitted in time.

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II. Considering the epidemic of COVID-19 Govt. guideline has been issued to function office within a limited staff i.e. 50% for which the submission of the reference petition has been delayed which was un-intentional.

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III. One of our staff Sri Lalu Prasad Rout, Ex-R.I (Retd.) who was dealing within this matter was suffering from Cancer and under treatment.

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In view of the above narrated facts and circumstances it is prayed that condonation of delay under Section 5 of the Limitation Act may kindly be considered.

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That the delay in filing the referral petition is neither intentional nor will full but due to the good and sufficient reasons shown herein above. Interest of justice demands that the present referral petition is allowed and the delay in filing kindly be condoned so that the matter can be adjudicated upon on its merit.”

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( Emphasis supplied )

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18. However, in the said petition, the Authority concerned failed to mention that the present Appellant filed the written application before the Authority concerned in time. Hence, the referral Court, immediately thereafter, vide the impugned order dated 20.10.2023, without giving any opportunity to the present Appellant, who is the Petitioner/Claimant, dismissed the said application for condonation of delay filed under section 5 of the Limitation Act with an observation that the said provision cannot be invoked for extension of limitation prescribed under section 64 of the Act, 2013.

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19. Further, the Court below also observed that in absence of any Affidavit furnished by the present Respondent (State) so also in view of the decision of the Supreme Court, as referred to in the said order, the application for condonation of delay, being devoid of any merit, deserves to be rejected. As a consequence thereof, the Petition under section 64 of the Act, 2013 was also held to be time barred and invalid with an observation that, it is surprising that how the Opposite Party entertained the application of the present Appellant after a long lapse of 5 years and 7 months.

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20. It is pertinent to mention here that as per the second proviso under sub section 1 of section 64, where the Collector

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fails to make a reference within a period of 30 days from the date of receipt of the application to the appropriate Authority, the Applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make a reference to it within a period of 30 days. In view of the said provision, the word “may” used under the Proviso in sub-section 1 of section 64 of the Act 2013, this Court is if the view that the same cannot be read as “shall”.

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21. Further, this Court is of the view that because of the fault/laches on the part of the State-Respondent in not referring the written application of the Appellant to the referral Court in time, the Appellant/Claimant cannot be held responsible and blamed for such delay and laches.

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22. In view of the above, the prayer made in this Appeal is allowed. The rejection order dated 20^th October, 2023 passed in LAR&R Case No.147 of 2023 so also other rejection orders impugned in the connected Appeals, which are on board, i.e. L.A.A. Nos.51, 52, 53, 54, 55, 56, 57, 58, 59, 60 & 61, all of 2023, are hereby quashed. All the matters are remitted back to the referral Court for reconsideration of the applications filed by the Appellants (Petitioners before the Court below) under Section

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64 of the Act, 2013 on merit, giving due opportunity to the

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parties to lead evidence to substantiate their respective stand.

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23. With the said observations, all the Appeals stand allowed and disposed of.

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24. Urgent certified copy of this common Judgment be granted on proper application as per rules.

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….……….….…………

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S.K. Mishra, J.

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Orissa High Court, Cuttack. Dated, 7^th December, 2024/ Monalisa

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Signature Not Verified

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Digitally Signed Signed by: MONALISA SWAIN Designation: Junior Stenographer Reason: Authentication Location: High Court of Odisha Date: 25-Dec-2024 15:53:11

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Maduka Majhi v. State of Odisha

Case brief

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Maduka Majhi v. State of Odisha

Case brief

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