GADADHARA BEHERA v. STATE OF ORISSA — 1997 DIGILAW 231 (ORI)

R. K. PATRA, J. ( 1 ) THE order dated 14. 3. 1997 at Annexure-2 passed by the learned civil Judge (Senior Division), Balasore in Ex-ecution Case No. 9 of 1995 holding that the petitioner cannot recover the amount of compensation from the Land Acquisition Collector and he can do so only from the party who had received the said amount wrongfully is the subject matter of challenge in this application. ( 2 ) THE petitioner purchased land admeasuring Ac. 0. 13 under plot No. 1338 appertaining to khata No. 303 in village ganeswarpur from Rabindranath Behera and khagendra Behera by way of a registered sale-deed dated 30. 4. 1971 and from the date of purchase he continued to remain in possession of the said land. The Tahsildar, Balasore by order dated 3. 1. 1981 mutated the land in question in the name of the petitioner who had been paying rent regularly from the time ofjpurchase. The allegation of the petitioner is that the land in question was acquired by the state Government as per its declaration No. 67146 dated 14. 11. 1985 published in the orissa Gazettee dated 10. 12. 1985 for establishment of Industrial Estate. There was no notice to him at any time during the land acquisition proceedings. The Land Acquisition Collector without holding proper enquiry as to who was the rightful owner of the land in question made the award under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in favour of third party and illegally paid the amount under the award to him. After coming to know that the awarded amount was paid to third party wrongly, the petitioner demanded payment of the same to him. This necessitated the Land acquisition Collector to make a reference under Section 30 of the Act to the learned subordinate Judge, Balasore in L. A. Misc. Case No. 222 of 1986. After hearing, the learned Subordinate Judge by order dated 5. 1. 1993 held that the petitioner alone is entitled to receive the compensation amount awarded vide award No. 15 in respect of the disputed land and no other party was entitled to receive the amount. Case No. 222 of 1986. After hearing, the learned Subordinate Judge by order dated 5. 1. 1993 held that the petitioner alone is entitled to receive the compensation amount awarded vide award No. 15 in respect of the disputed land and no other party was entitled to receive the amount. The petitioner, after the aforesaid order, approached the Land acquisition Collector to pay him the awarded amount but as there was no response, he levied Execution Case No. 9 of 1995 in the court of the Civil Judge (Senior Division), balasore for realisation of the amount. The learned Civil Judge by the impugned order dated 14. 3. 1997 (Annexure-2) held that the petitioner can only recover the amount from the party who received the same and not from the Land Acquisition Collector. As already indicated, the legality of the said order at annexure-2 is under challenge. ( 3 ) SHRI Samal contends that the impugned order passed by the executing Court is erroneous in law and is not sustainable. He submits that in L. A. Misc. Case No. 222 of 1986, the learned Subordinate Judge has already declared that the petitioner is alone entitled to receive the compensation amount, and in view of such declaration, he should not be forced to go to a civil court for recovery of the amount which was paid to a person who was not entitled to receive it. In this connection, he relies on the judgment of the Calcutta high Court in Abani Bhusan Chatterjee v. The State of West Bengal wherein it has been held that in the facts of that case, payment of the awarded amount without due opportunity to the applicants by the Collector was wrongful and as such, the applicants should not be relegated to a suit to recover the money so paid from the persons who received the amount. The learned Additional Government advocate, on the other hand by referring to the third proviso of sub-section (2) of Section 31 of the Act which provides that nothing therein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under the Act, to pay the same to the person lawfully entitled thereto, submits that the petitioner has the right to recover the awarded amount from the persons who received it and the land Acquisition Collector cannot be held liable for payment of the amount to the petitioner. ( 4 ) WE have carefully considered the rival contentions of the counsel for the parties. It. is not in dispute that in the reference made at the instance of the Land Acquisition Collector under Section 30 of the Act (vide L. A. Misc. Case No. 222 of 1986) to the learned Subordinate judge, Balasore, the petitioner adduced evidence in support of his case that he was the owner of the land in question and the award was made by the Land Acquisition. Collector without notice to him. On the basis of the evidence adduced, the learned Subordinate judge by order dated 5. 1. 1993 held that the petitioner is alone entitled to receive the compensation amount awarded vide award no, 15 in respect of the disputed land and no other party was entitled to receive the amount. The following are the findings recorded by the learned Subordinate Judge in the aforesaid order dated 5. 1. 1993: (I) There is no reason to entertain any doubt in the execution of the sale deed in favour of the petitioner in respect of the disputed land by the vendors Rabindranath Behera and Khagendra Behera. (II) From the tahasil Khatian, it is evident that the land was mutated in the name of the petitioner, and he had paid rent of the land in the year 1982,1984 and 1986 which prima facie show that the possession of the land was with the petitioner. (III) The Land Acquisition Collector did not send any notice to the petitioner in the enquiry under section 11 of the Act and thus, neither the petitioner nor his sons had any knowledge about the enquiry made by the Land Acquisition Collector or acquisition of the land. (III) The Land Acquisition Collector did not send any notice to the petitioner in the enquiry under section 11 of the Act and thus, neither the petitioner nor his sons had any knowledge about the enquiry made by the Land Acquisition Collector or acquisition of the land. From the aforesaid findings, it is evident that the Land Acquisition Collector instead of paying the awarded amount to the petitioner who is the rightful person to receive the compensation, wrongly made payment to third persons. . The order of the learned Subordinate Judge is binding on the Land Acquisition collector who was a party in that case and it was passed after hearing him. Let us now examine what has been decided by the Calcutta High Court in the case of Abani (supra ). On perusal of the decision rendered in the case of Abani (supra), it appears that the facts of that case are similar to the case at hand. In that case also, the Land acquisition Collector had not issued any notice to the rightful owner of the land and made payment wrongfully to persons who were not entitled to receive the amount. The court in the penultimate paragraph of the judgment observed as follows:-". . . . SINCE we have earlier held that in the facts of the case payment of the award money without the due opportunity to the applicants by the Collector was wrongful, we hold that the applicants should not be relegated to a suit to recover the money so paid from the said awardees. It was and is the duty of the State Government to pay the compensation as awarded to the applicants and if so advised and if such right is not otherwise barred, they in their turn can recover the amount in question from the award money as paid to the awardees. "we are in respectful agreement with the aforesaid opinion expressed by the Calcutta high Court. ( 5 ) ON the facts and circumstances as indicated above,, we have no hesitation to hold that the Government or the Land Acquisition collector cannot throw on the petitioner the burden of recovering the compensation amount from some other party to whom the awarded amount was wrongly paid by the land Acquisition Collector. ( 5 ) ON the facts and circumstances as indicated above,, we have no hesitation to hold that the Government or the Land Acquisition collector cannot throw on the petitioner the burden of recovering the compensation amount from some other party to whom the awarded amount was wrongly paid by the land Acquisition Collector. The petitioner, accordingly, cannot be relegated to file a suit for recovery of the said amount from those persons to whom payment was made erroneously for no fault of his. ( 6 ) IN the result, the impugned order dated 14. 3. 1997 at Annexure-2 passed by the learned Civil Judge cannot be sustained in law and is hereby quashed. ( 7 ) PURSUANT to our previous order, the learned Additional Government Advocate has brought today a cheque of Rs. 9,948/- as the awarded amount to be paid to the petitioner. Shri Samal submits that the petitioner has filed execution case for recovery of Rs. 24,515 on five different counts and this amount of Rs. 9,948/- does not fully satisfy his claim. In the circumstances, we direct the Land Acquisition collector to deposit of Rs. 9,948/- in the executing court by 10. 9. 1997. The petitioner is at liberty to withdraw the said amount from the executing court. Since, as stated by Shri samal, the aforesaid amount of Rs. 9,948/-does not fully satisfy the claim, it is open to the petitioner to pursue the execution case. We make it clear that the deposit of Rs. 9,948/- by the Land Acquisition Collector and the withdrawal of the said amount by the petitioner as per this order does not debar the state Government or its officers to recover the same amount from the persons to whom they had paid the amount under the award no. 15. ( 8 ) THE writ application is accordingly allowed. There would be no order as to costs. Petition allowed. .