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1995 DIGILAW 106 (ORI)

STATE OF ORISSA v. KISUN SINHA

1995-03-23

B.N.DASH

body1995
B. N. DASH, J. ( 1 ) IN this appeal under Section 54 of the Land Acquisition Act, 1894 (in short, 'the Act'), the State of Orissa represented by the Land Acquisition Collector, Cuttack has challenged the award passed by the learned Subordinate Judge, First Court, Cuttack in a reference under Section 28-A (3) of the Act. ( 2 ) FOR the purpose of constructing Kusunpur Minor Irrigation Project, the appellant acquired some lands by issuing notification under Section 4 (1) of the Act. The land measuring Ac. 2. 10 decimals appertaining to plot No. 3 under Khat No. 139 of the respondent was also acquired for the project. Initially, the Collector under the Act passed an award under Section 11 for Rs. 4,547/- which the respondent received without protest. Subsequently, for some other lands acquired for the said project another person namely, Dinabandhu Dayal filed application under Section 18 of the Act for enhancement of the compensation which being received in court was registered as L. A. Misc. case No. 15 of 1983 and in that case, the court determined the compensation at the rate of Rs. 10,000/per acre for agricultural land. After such award of the court, the respondent filed an application before the Collector for redetermination of compensation under Section 28a (1) of the Act and the Collector allowed the application determining the compensation at Rs. 23,358/- at the rate of Rs. 10,000/- per acre. The respondent having found that there was mistake in calculation of the compensation and the Collector had refused compensation for the trees standing on the land filed an application under S. 28-A (3) of the Act before the Collector which was referred to the court. The court ultimately found that the compensation for the land had been duly determined by the Collector. It was also found that the Collector was right in not giving any compensation for any tree allegedly in existence on the acquired land. Accordingly, while upholding the award passed by the Collector on 21-7-1990, the court granted 30% as solatium and 12% additional market value and interest at the rate of 9% per annum for the first year from the date of taking possession and 15% for the subsequent years from 15-7-1974. Being aggrieved by such award, the present appeal has been filed. ( 3 ) MR. Das, the learned Addl. Govt. Advocate has raised two contentions. Being aggrieved by such award, the present appeal has been filed. ( 3 ) MR. Das, the learned Addl. Govt. Advocate has raised two contentions. His first contention is that the Collector under the Act having passed the award under Section 11 prior to the Amendment Act of 1984 and the respondent having accepted the compensation as per the award without protest, there was no scope of any reference under Section 28-A of the Act and as such, the impugned award is liable to be set aside. His second contention is that the learned Subordinate Judge could not have granted additional market value of the land at 12% per annum in asmuch as the award passed by the Collector was much prior to the interpretation of the aforesaid Section 23 (1a) in the Act. Mr. Panda for the respondent, on the other hand, supports the impugned award. With regard to the first contention raised on behalf of the appellant, his submission is that even if a claimant has received the compensation amount in pursuance of an award passed prior to the amendment Act of 1984 without protest, then also he is entitled to make an application under Section 28-A of the Act and the Land Acquisition Collector is obliged to make a reference to the court. So far as the second contention of the appellant is concerned, his submission is that the impugned award having been passed much after coming into force of the Amendment Act i. e. on 21-7-1990 and the application under Section 38a (3) having been made within lime, the court was quite correct in awarding additional market value of the land at the rate of 12% per annum. ( 4 ) IN support of the first point, the learned Addl. Govt. Advocate has relied on a Bench decision of this Court in O. J. C. No. 2656 of 1990 (Moddu Krishna Murty v. State of Orissa) decided on 30-4-1993. ( 4 ) IN support of the first point, the learned Addl. Govt. Advocate has relied on a Bench decision of this Court in O. J. C. No. 2656 of 1990 (Moddu Krishna Murty v. State of Orissa) decided on 30-4-1993. Therein, it was held that any person who has accepted the awarded amount as determined by the Collector without protest, he is disentitled to maintain an application for reference under Section 18 and hence the question of his not having made an application under Section 18 would be begging the question and, therefore, the petitioners were not entitled to make applications under Section 28-A. To the said Division Bench, another Bench decision of this Court passed on 19-6-1992 in Ram (sic) v. State of Orissa reported in 1992 LACC 458 was not brought to the notice. In that case, it was decided that even if a person has received compensation without protest he can invoke the jurisdiction of the Collector under the Act under Section 28-A for the redetermination of the compensation. There is no dispute at the bar that against this decision of the Division Bench the State of Orissa had filed special leave petition before the Apex Court which was dismissed. The controversy has been set at rest by the Supreme Court in the case of Babua Ram v. State of U. P. reported in (1994) 7 JTSC 377: (1995 AIR SCW 65 ). Therein, it was observed as under (at p. 81 of AIR SCW):". . . . . . . . . . . . When such an application is made in writing by the aggrieved person, notwithstanding the fact of his having received compensation under S. 31 without protest and of not availing the right and remedy of the reference under S. 18, the redetermination of the compensation under S. 28a (1) is required to be done. "in the said decision, the case of Babua Ram v. State of U. P. , AIR 1992 All 170 was referred to and it was held that the appellants are persons aggrieved within the meaning of subsection (1) of Section 28-A to avail the right u/s. 28-A (1 ). The earlier Division Bench decision of this Court (O. J. C. No. 2656 of 1990) (supra) was relied in the aforesaid case of Allahabad High Court which has already been dealt with by the Supreme Court. The earlier Division Bench decision of this Court (O. J. C. No. 2656 of 1990) (supra) was relied in the aforesaid case of Allahabad High Court which has already been dealt with by the Supreme Court. Although the two Bench decisions of this Court are conflicting with each other, I am not inclined to refer the matter for a decision by the Full Bench in view of the authoritative pronouncement of the Supreme Court. Relying on the decision of the Supreme Court in Babua Ram (supra), I hold that although the respondent had received compensation in accordance with the award passed by the Collector without protest, he had a right to make an application to the Collector under Section 28-A (1) of the Act and the Collector was obliged to refer the matter to make an award under Sec. 28-A (2 ). ( 5 ) SO far as the second point is concerned, the argument of the learned Addl. Govt. Advocate is that the earlier award of the Collector being much prior to 1984 and the receipt of the compensation by the respondent in accordance with that award being also much prior to 1984, the learned subordinate Judge went wrong in granting additional market value of the land at the rate of 12% per annum under Section 23 (1-A) of the Act. On the other hand, according to Mr. Panda for the respondent, the award passed by the Collector under sub-section (2) of Section 28a on receipt of an application for redetermination of compensation under sub-section (1) being also an award, sub-section (1-A) of Section 23 squarely applies and as such, the court was perfectly justified in awarding additional market value of land at the rate of 12% per annum. It is seen that sub-section (1-A) of Section 23 and the entire Section 28-A came to the Statute Book by way of amendment by Act 68 of 1984. It is seen that sub-section (1-A) of Section 23 and the entire Section 28-A came to the Statute Book by way of amendment by Act 68 of 1984. When sub-section (2) of Section 28-A mandate a Collector to make an award he has to consider the entire provision of the Act in making the award and since at the time of making the award sub-section (1a) of Section 23 was very such available to him, he should have granted additional market value of the land at the rate of 12% per annum and since he failed to exercise the jurisdiction vested in him, the learned subordinate Judge was quite justified in granting such additional market value. So, the second contention must also fail. ( 6 ) IN the result, I do not find any merit in the appeal which is, accordingly, dismissed, but there shall be no order as to costs.