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2016 DIGILAW 912 (ORI)

Angul Sukinda Railway Ltd. v. Priyabrata Panda

2016-10-05

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. The order dated 10.03.2016 passed in L.A. No.209 of 2013 is under challenge whereby and where under the prayer made by the Company, the petitioner herein under Order 1, Rule 10 of C.P.C. to implead him as necessary party in the present case has been rejected. 2. Case of the petitioner in short is that the Government of Odisha has issued notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) seeking acquisition of land for setting up the Angul-Duburi-Sukinda Rail Project expressing the necessity of land to be acquired in the district of Dhenkanal and adjacent district. The petitioner being a “person interested” within the meaning of the Act, though entitled to notice under Section 20 of the Act and to participate in the reference in terms of Sub-Section (2) of Section 50 for determination of the market value under Section 18 of the Act, was not provided with such opportunity. 3. According to the petitioner, reference has been made under Section 18 of the Land Acquisition Act, 1894 and the land in question was acquired for the purpose of rail-line and the work has been entrusted to the petitioner-company with the liability to pay the compensation amount in respect of the said project, in terms of agreement with the Ministry of Railways, as such the petitioner –company being a necessary party has made application under Order I Rule 10 of the Code of Civil Procedure, 1908 (in short CPC) for being impleaded as party. But the same has been rejected vide order passed in L.A. No.209 of 2013 dated 10.03.2016, being aggrieved this present writ petition has been filed. 4. Opposite party no.1 has been represented by M/s. Sambit Pattnaik and Biswanath Swarnakar, learned counsel who has shown no objection, if the petitioner – company will be provided an opportunity of being heard in the proceeding pending before the court below. 5. 4. Opposite party no.1 has been represented by M/s. Sambit Pattnaik and Biswanath Swarnakar, learned counsel who has shown no objection, if the petitioner – company will be provided an opportunity of being heard in the proceeding pending before the court below. 5. After hearing the parties and perusing the documents available on record and also the provision of the Land Acquisition Act, 1894, following question arises for our consideration i.e., (i) Whether the company or the authority for whose benefit the land is being acquired (hereinafter referred to as the beneficiary) and who has to bear the entire burden of compensation is a “person interested” within the meaning of the said expression as defined in clause (b) of Section 3 of the Land Acquisition Act ? (ii) Whether the Order 1 Rule 10 of C.P.C. applies to the proceedings under Section 18 of the Land Acquisition Act. (iii) Whether the Civil Court has jurisdiction to implead any person in a reference under Section 18 of the L.A. Act and whether such person is “person interested” within the meaning of Section 3 (b) of the L.A. Act or not ? 6. Relevant provision which has got bearing for the issue involved in this case i.e., Section 3(b) which defines the expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. Section 18 entitled a person who has not accepted the award to apply to the Collector to refer the matter to the Court both with respect to the quantum of compensation as well as apportionment thereof. Section 19 specifies the information which the Collector should send along with the reference. One of the matters, which he must specify is mentioned in clause (d) of sub-section (1) thereof, namely: “(d) if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined.” Section 20 says that the Court shall send notices to (a) the applicant, (b) all persons interested in the objection and (c) the Collector and thereupon proceed to dispose of the matter. Section 50, which occurs in “Part VIII Miscellaneous” contains a provision, which is very relevant for our purpose, sub-section (2). Section 50, which occurs in “Part VIII Miscellaneous” contains a provision, which is very relevant for our purpose, sub-section (2). Section 50 says that the acquisition of land at cost of a local authority or Company- (1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or Company. (2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. Provided that no such local authority or Company shall be entitled to demand a reference under Section 18.” Section 53 says “save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act.” Section 54 says Appeals in proceedings before Court.- Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908. 7. So far as the arguments advanced on behalf of the learned counsel for the petitioner as to whether the Order 1 Rule 10 applies to the proceedings under Section 18 before the Court. Section 53 of the Act does apply the provisions of the Code of Civil Procedure to all proceedings before the Court under this Act. 7. So far as the arguments advanced on behalf of the learned counsel for the petitioner as to whether the Order 1 Rule 10 applies to the proceedings under Section 18 before the Court. Section 53 of the Act does apply the provisions of the Code of Civil Procedure to all proceedings before the Court under this Act. (The expression Court is defined in clause (d) of Section 3 to mean a principal Civil Court of original jurisdiction unless the appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act) The question is whether Order 1, Rule 10 of C.P.C. inconsistent with any of the provisions contained in the Act. This question has to be answered on a consideration of Sections 18, 30 and 50. Section 18 entitled a person to ask for a reference to the Civil Court if he is dissatisfied with the award. Section 30 provides for reference of a dispute relating to apportionment of compensation to the Court. 8. Section 30 provides for reference of a dispute relating to apportionment of compensation to the Court. Section 30 entitles a person, who has not appeared before or participated in the proceeding before the Collector, to ask for a reference if he claims any part or whole of the compensation amount. 9. Section 50 confers a specific right on the beneficiary. It says that the local authority or the Company for whose benefit the land is being acquired is entitled to appear and adduce evidence for the purpose of determining a reference under Section 18. 10. Thus, both are conflicting to each other. What do the above provisions indicate? In our considered view, though the proceeding before the Court under Section 18 is not an appeal, as held by the Supreme Court in Chimanlal Hargovinddas Vrs. S.L.O. reported in AIR 1988 SC 1652 , at the same time, it is not like a civil suit. The matter comes before the Court on a reference being made by the Collector either under Section 18 or under Section 30. The Civil Court cannot take cognizance of the dispute as an original court by itself. S.L.O. reported in AIR 1988 SC 1652 , at the same time, it is not like a civil suit. The matter comes before the Court on a reference being made by the Collector either under Section 18 or under Section 30. The Civil Court cannot take cognizance of the dispute as an original court by itself. A person whose case is not referred by the Collector under Section 18 or 30 cannot appear before the court and claim either a share in the compensation or for enhancement of the compensation. If such a thing is permitted, the very purpose of including a proviso relating to limitation in Section 18 would be defeated. The Act provides for a reference being made at the instance of a person who has appeared or participated in the award proceedings before the Collector under Section 18, but this must be done within the period prescribed. Under Section 30, no doubt, even a person who has not appeared before the Collector can ask for a reference, without any limitation of time, but this is confined only to a dispute of apportionment. But even this provision indicates how a party must approach the Court, he cannot go directly but through Collector. 11. So far as the beneficiary is concerned, sub-section (2) of Section 50 specifically provides for a limited right in his favour. It says that the local authority or the Company for whose benefit the land is acquired may appear and adduce evidence for the purpose of determining the amount of compensation. This right given to the is akin to the right given to a person by Order 1, Rule 10 of CPC, though somewhat lesser in its content though undoubtedly the right given by sub-section (2) of Section 50 extends not only to appear and lead evidence in support of its case but also to cross-examine the witnesses produced by the claimants. 12. Since its only interest is in ensuring that excessive compensation is not awarded, the right given to it by Section 50(2) is adequate to safeguard the said interest. The main difference appears to be that if the beneficiary is impleaded as party, it can file an appeal under Section 54 as a matter of right, but where it is not impleaded as such and exercise the right given by Section 50(2), it has to apply for leave to file an appeal. 13. The main difference appears to be that if the beneficiary is impleaded as party, it can file an appeal under Section 54 as a matter of right, but where it is not impleaded as such and exercise the right given by Section 50(2), it has to apply for leave to file an appeal. 13. Thus, Order 1, Rule 10 is inconsistent with the provisions contained in the Act. The right of the beneficiary to participate in a reference is only that as is recognized by Section 50(2) and no more. In this regard reference needs to be made the judgment rendered by the Hon’ble Supreme Court in the case of City of Ahmedabad vrs. Chandulal Shamaldas Patel reported in (1971) 3 SCC 821 , wherein certain lands were notified for acquisition under Section 4. A writ petition was filed in the High Court of Gujrat, impugning the validity of the said notification as well as of the declaration made under Section 6. In the writ petition, Municipal Corporation of the City of Ahmedabad, for whose benefit the land was being acquired, was impleaded as the fourth respondent, but no relief as such was prayed for against it, nor was granted against it. The writ petition was allowed, holding that the notifications issued by the Government was not valid by the law. Against the judgment of the High Court, Corporation has preferred an appeal to the Supreme Court and after hearing the parties it has been held as follows:- “The Municipal Corporation was impleaded as the fourth respondent before the High Court but no relief was claimed against the Municipal Corporation, The property, it is true, was notified for acquisition by the State Government for the use of the Municipal Corporation after it was acquired, but that, in our judgment, did not confer any interest in the Municipal Corporation so as to enable it to file an appeal against the order of the High Court allowing the petition. Substantially, the grounds on which the petition was filed were that the notifications were invalid on account of diverse reasons. Some of these reasons have been upheld and some have not been upheld but all those grounds related to the validity of the Notifications issued by the Government of Bombay and the Government of Gujarat. Not even an order of costs has been passed against the Municipal Corporation of the City of Ahmedabad. Some of these reasons have been upheld and some have not been upheld but all those grounds related to the validity of the Notifications issued by the Government of Bombay and the Government of Gujarat. Not even an order of costs has been passed against the Municipal Corporation of the City of Ahmedabad. We fail to see what interest the Municipal Corporation has which would sustain an appeal by it against the order of the High Court allowing the writ petition filed by the first respondent.” In the judgment, it has held by the Hon’ble Supreme Court that the Municipal Corporation could not be said to be an aggrieved party and hence could not file an appeal. 14. So far as reference made of the judgment rendered in the case of Himalaya Tiles, AIR 1980 SC 1118 , the Company moved the Government to acquire certain additional land for its purposes. The Government accordingly issued a notification under Section 4 followed by the declaration under Section 6. In pursuance thereof, an award was made and published. The acquisition was challenged by way of writ petition in the High Court of Bombay on the ground that an acquisition for the purposes of a company could not have been made as if for a public purpose under Section 4. The writ petition was allowed and the land acquisition proceeding was quashed. Thereupon, an appeal was filed which was dismissed merely on the ground that the Company has no locus standee to file an appeal since it was not a person interested within the meaning of Section 18(1). The order was questioned before the Supreme Court and at para-7, it has been held which is being quoted herein below:- “It seems to us that the definition of a person interested given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested in the Government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the Government, Thus, it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement it had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay very heavy amount of money. For this purpose, the company would undoubtedly appear and adduce evidence on the question of the quantum compensation.” In the case of Santosh Kumar vrs. Central Warehousing Corporation, AIR 1968 SC 1164, the Hon’ble Supreme Court has again considered this question and at para-4, it has been held which is being reproduced herein below:- “In our view, there cannot be any possible doubt that the scheme of the Act is that, apart from fraud, corruption or collusion, the amount of compensation awarded by the Collector under Section 11 of the Act may not be questioned in any proceeding either by the Government or by the company or local authority at whose instance the acquisition is made. Section 50(2) and Section 25 lead to that inevitable conclusion. Surely what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226. Article 226 is not meant to avoid or circumvent the processes of the law and the provisions of the statute. When Section 50(2) expressly bars the company or local authority at whose instance the acquisition is made from demanding a reference under Section 18 of the Act. In the case of U.P. Awas Evam Vikas Parishad vrs. Gyan Devi reported in AIR 1995 SC 724 rendered by the constitution Bench, wherein the judgment rendered in the case of Municipal Corporation, Ahmedabad (supra) has been said to be not a good law and the judgment rendered in the case of Himalaya Tiles (supra) has been said to be correct law and after taking into consideration the entire aspect of the matter, the majority view has laid down at para-25 the following conclusions:- 1. “Section 50(2) of the L.A. Act confers on a local authority for whom and is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carries with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up. 3. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act. 4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution. 5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. 6. The local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. 7. In the event of enhancement of the amount of compensation by the reference Court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too. 10. The matters which stand finally concluded will, however, not be reopened.” 15. In the light of these judgments, there is no dispute about the fact that the provision of Order 1, Rule 10 has no application to reference proceedings under Section 18 of the Land Acquisition Act. Its application is excluded by the context of the Act, that is, by necessary implication. A beneficiary (local authority or company for whose benefit the land is being acquired and who is ultimately liable to bear the burden of paying the compensation) cannot apply for impleading, nor can it be impleaded as a party-respondent under Order 1, Rule 10 of CPC read with Section 53 of the Land Acquisition Act and its right is only the one recognized by Section 50(2) of the Act. It can appear in such a reference and adduce evidence in support of its case and also to contradict the evidence produced by the claimants. It can also cross-examine the witnesses produced by the claimants. It cannot either ask for a reference under Section 18 nor can it file an appeal against the judgment and award of the Civil Court as a matter of right under Section 54 of the Act. It can file such an appeal with leave of the Court. 16. In the light of discussion made hereinabove, it is held that the Civil Judge (Senior Division), Kamakhyanagar was not wrong in rejecting the application for impleadment filed by the petitioner-company, Angul Sukinda Railway Limited, but he ought to have taken into consideration the provision as contained in Section 50(2) of the Land Acquisition Act, however the discussion has been made but due to lack of documents filed in support of the fact that the Company is the beneficiary, hence declined to allow the petitioner-Company to participate in the proceeding. But taking into consideration the specific averments made in the writ petition that the land has been acquired by the State of Odisha and to that effect under Section 4(1) of the Land Acquisition Act, 1894 for setting up Angul-Duburi–Sukinda Railway Project in the district of Dhenkanal and its adjacent district has been issued and the petitioner-company has entered into an agreement with the Ministry of Railways to execute the work with a specific liability to pay the compensation amount as would be evident from para-4 of the counter affidavit and the same has not been disputed by opposite parties hence there is no question of disbelieve the statement. Taking into consideration this aspect of the matter and without interfering with the order, liberty is granted to the petitioner to avail the right provided in sub-section (2) of Section 50 of the Land Acquisition Act. With the above discussion and observation, the writ petition is disposed of.