Orissa High Court
Afr Smt. Janabi Naik & Ors vs State Of Odisha & Ors. ..... Opp. Parties on 16 April, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 9084 OF 2024
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Smt. Janabi Naik & Ors. ..... Petitioners
-Versus-
State of Odisha & Ors. ..... Opp. Parties For petitioners : M/s. P.K. Satapathy, D.K. Mohapatra and P. Panda, Advocates For opp. parties : Mr. P.K. Muduli, Addl. Government Advocate P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY DECIDED ON : 16.04.2024 DR. B.R. SARANGI,J. The petitioners, by means of this writ petition, seek to set aside the order dated 04.12.2023 passed in L.A Reference Case No.317/2013 (arising out of L.A Case No.11/10) under Annexure-1, by which the learned Senior Civil Judge, Sundargarh has dismissed the petition filed under Order 1 Rule 10 of CPC as not Page 1 of 19 // 2 maintainable, and further to issue direction for their impletion as opposite parties in the above noted reference case pertaining to the dispute of apportionment of share of the compensation amount for the acquired land under Khata No.49, Village- Kirei, Tahasil-Sundargarh.
2. The factual matrix of the case, in brief, is that the landed properties under Khata No.49, Mauza- Kirei under Sundargarh Tahasil measuring Ac.4.790 dec. was recorded in the name of Dibyasingh Naik, Upendra Naik and Debendra Naik. The authority, after enquiry, found that the present rayats of the land are Kishore Naik, Kailash Naik, Manjari Naik, Amulya Naik, Meera Naik, sons and daughters of Upendra Naik, Raimati Naik, W/o Upendra Naik and Pallabi Naik, D/o Debendra Naik. After following due procedure, the entire land was acquired by the Govt. of Odisha under the provisions of Land Acquisition Act, 1894. The land acquisition award amount was assessed and award slip was prepared under Section 9 of the Act.
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// 3 2.1. Opposite parties no.3 to 5 filed an application on 27.07.2013 objecting the land acquisition award passed in the name of Ballabi Naik in respect of the land under Khata No.49, Village Kirei, PS- Sundargarh Sadar. In their objection, they disclosed that the landed property under Khata No.49, village-kirei was recorded in the name of Debendra Naik, Upendra Niak, S/o- Gajraj Naik in the settlement ROR of the year 1979. The same was partitioned between the parties and they possessed the land separately as per mutual partition. Debendra Naik sold his share over the land and settled at his father-in-laws house. The land was sold to Dulari Patel of Lankahuda and Debendra Naik lost his right, title and interest. The Land Acquisition Officer erroneously passed award in the name of Ballabi Naik, D/o Debendra Naik as rayat. Opposite parties no.3 to 5 claiming themselves as sons of Upendra Naik filed objection and claimed entire awarded amount. 2.2. The Land Acquisition Officer, Sundargarh referred the claim to the learned Senior Civil Judge, Sundargarh for adjudication on the grievance and Page 3 of 19 // 4 apportionment of the land acquisition compensation amount. The said proceeding was registered as L.A Case No.317/2013.
2.3. The present petitioners' father Kshyamsil Patel purchased a piece of land measuring Ac.0.50 dec from Plot No.247, Khata No.49 by virtue of registered sale deed no.1077 dated 07.06.1982. On the basis of his purchase, mutation case was allowed and mutation ROR bearing Khata No.128/34, Plot No.247/1506 measuring Ac.0.50 dec was issued in the name of the petitioners' father. Petitioners' father died on 03.03.1999 and after his death, the present petitioners, being the successors, acquired the right over the property. The purchase of petitioners' father was reflected in the settlement ROR after mutation made in the year 1987.
2.4. The present petitioners made a claim before the Land Acquisition Officer to award the compensation amount in their names in respect of purchased land Ac.0.50 dec. The Land Acquisition Officer disclosed that since the claim in respect of the entire compensation Page 4 of 19 // 5 amount under Khata No.49, Village-Kirei, Sundargarh has been referred to the Civil Court, petitioners' claim cannot be considered separately. Hence, the petitioners, after knowing the award and pendency of the reference case, on 20.07.2023, filed an application under Order-1, Rule-10 of CPC for addition of parties to the proceeding stating that the present petitioners have interest over the award amount in respect of the purchased land measuring area Ac.0.50 dec. from the recorded owner Dibyasingh Naik, Upendra Naik, Debendra Naik and, hence, the petitioners' presence is essential for adjudication of the dispute pertaining to apportion of compensation amount. As the part of the compensation for Ac. 0.50 dec land out of Plot No.247, Khata No.49 is payable to the petitioners, they have interest over the award amount and they have a share on the same. The said case is pending before the referral court. 2.5. Learned Senior Civil Judge, Sundargarh passed the impugned order dated 04.12.2023 in L.A Reference Case No.317/2013 (arising out of L.A Case No.11/10) under Annexure-1 dismissing the petition filed Page 5 of 19 // 6 under Order 1 Rule 10 of CPC holding that the same is not maintainable and posted the matter to 05.01.2014 for hearing. Hence, this writ petition.
3. Mr. P.K. Satapathy, learned counsel appearing for the petitioners vehemently contended that the learned Senior Civil Judge, Sundargarh has committed gross error apparent on the face of the record by rejecting the application filed by the petitioners under Order 1 Rule-10 of CPC to be added as necessary parties to the L.A. Reference Case No.317 of 2013 (arising out of L.A. Case No.11 of 2010), as not maintainable. It is contended that the petitioners are the beneficiaries and have right over the apportionment of awarded amount and, therefore, they should have been added as necessary parties to the aforesaid proceeding. But, the learned Senior Civil Judge, Sundargarh has lost sight of the provisions of Order-1 Rule-10 of CPC. Consequentially, the order dated 04.12.2023 passed in L.A Reference Case No.317/2013 (arising out of L.A Case No.11/10) under Annexure-1 should be quashed. In support of his contention, he has relied upon the judgment of the apex Court in M/s. Page 6 of 19
// 7 Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition), Neyvely, AIR 1995 SC 1004 : (1995) 3 CCC (SC) 642.
4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State opposite parties contended that as per Section 9 of the Land Acquisition Act, 1894, notice was issued to persons interested and after enquiry was made, on receipt of objection from the persons interested pursuant to notice given under Section 9 of the Act, the Collector, Jharsuguda passed award under Section 11 of the Land Acquisition Act. In view of provisions contained in Section 30 of the Land Acquisition Act, 1894, when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons, to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the referral court. As such, the dispute can only be resolved by the learned Senior Civil Judge, Sundargarh and consequentially, the application filed by the petitioners under Order-1 Rule-10 of CPC cannot be Page 7 of 19 // 8 maintainable before the learned Senior Civil Judge, Sundargarh. Thereby, the learned Senior Civil Judge, Sundargarh has not committed any error in passing the order dated 04.12.2023 in L.A Reference Case No.317/2013 (arising out of L.A Case No.11/10) under Annexure-1 rejecting the application under Order 1 Rule 10 CPC on the ground of maintainability.
5. This Court heard Mr. P.K. Satapathy, learned counsel appearing for the petitioners and Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode. Since the only question of law is involved with regard to maintainability of the application filed under Order-1 Rule-10 of CPC before the learned Senior Civil Judge, Sundargarh, this Court is not inclined to issue notice to the private opposite parties no.3 to 5, as they are the petitioners before the referral court under Section 30 of the Land Acquisition Act, 1894, and is disposing of the writ petition finally at the stage of admission. Page 8 of 19
// 9
6. On the basis of the factual matrix, as delineated above, it is made clear that the dispute pertains to Plot No.247 kisam Ba.Sa measuring Ac. 1.430 dec of acquired land. The father of the petitioners', namely, Kshyamasila Patel had purchased a piece of land measuring Ac.0.50 dec from R.T. of Hal Khata No.49 Dibyasingh Naik, Upendra Naik and Debendra Naik vide registered sale deed dated 07.06.1982 and the Tahasildar Sadar, Sundargarh had mutated the said land in favour of the father of the petitioners' Kshyamasila Patel vide Mutation Case No.94 of 1987. Since dispute arose with regard to apportionment of compensation amount, the matter was referred to the learned Senior Civil Judge, Sundargarh under Section 30 of the Land Acquisition Act, 1894 for adjudication, which has been registered as L.A. Reference Case No.317 of 2013. When the proceeding is pending before the referral court, the petitioners, being the legal representatives of Kshyamasila Patel, who purchased the land measuring Ac.0.50 dec from R.T. of Hal Khata No.49, filed an application under Order 1 Rule 10 of CPC for impletion of Page 9 of 19 // 10 parties to the said proceeding. But, the learned Senior Civil Judge, Sundargarh rejected the said application vide order dated 04.12.2023 on the ground of maintainability.
7. Before delving into the merits of the case, for better appreciation of the case, the provisions of Sections 9, 10, 11, 30 and 53 of the Land Acquisition Act, 1894 are extracted hereunder:-
"9. Notice to persons interested. - (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensations for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to entitled to act for persons so interested, as reside or have agents authorized to receive service on Page 10 of 19 // 11 their behalf, within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in letter addressed to him at his last known residence, address or place or business and [registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)].
10. Power to require and enforce the making of statements as to names and interests. - (1) The Collector may also require any such person to make or deliver to him, at a time and place mentioned (such time not being earlier than fifteen days after the date of the requisition), a statement containing, so far as may be practicable, the name of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-
proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits (if any), received or receivable on account thereof for three years next preceding the date of the statement.
(2) Every person required to make or deliver a statement under this section 9 shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code (45 of 1860). Enquiry into measurements, value and claims, and award by the Collector.
11. Enquiry and award by Collector. - (1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objection (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land [at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-
(i) the true area of the land;
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(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, or whom, or of whose claims, he has information, whether or not they have respectively appeared before him :
[Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under subsection (2) shall be liable to registration under that Act.] 11A. Period shall be which an award within made.-The Collector shall make an Page 12 of 19 // 13 award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made within a period of two years from such commencement.
Explanation- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.] Notes: (a) Section 51 of the LA Act provides for free copy of an award or agreement made under this Act.
(b) Para 70 of Chapter V of Executive instruction issued by BR, Bihar and Orissa also state the same provisions for free certified copy of the award.
xxx xxx xxx
30. Dispute as to apportionment. - When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.
xxx xxx xxx
53. Code of Civil Procedure to apply to proceedings before Court - Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the [Code of Civil Procedure, 1908 (5 of 1908)], shall apply to all proceedings before the Court under this Act."Page 13 of 19
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8. There is no doubt about the fact that once the land acquisition proceeding is initiated under the provisions of the Land Acquisition Act, 1894, a notice is to be issued to the persons interested under Section 9 of the Act and, as such, in the present proceeding, such notice was issued but, no notice was issued to the petitioners, who are the legal representatives of original purchaser of land measuring Ac.0.50 dec. under Khata No.49. Thereafter, Section 10 of the Act was followed, enquiry was conducted and award was passed under Section 11 of the Act. But, dispute arose with regard to apportionment of the amount awarded by the Collector, Sundargarh. Therefore, the matter was referred to the referral court, i.e., learned Senior Civil Judge, Sundargarh under Section 30 of the Act.
9. On perusal of Section 30 of the Land Acquisition Act, 1894, it is made clear that when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the matter shall Page 14 of 19 // 15 be referred to the learned Senior Civil Judge, Sundargarh. There is no dispute before this Court that the said proceeding is pending before the referral court for adjudication. At this point of time, the petitioners, who are the legal representatives of the original purchaser of the land measuring Ac.0.50 dec from Plot No.247, came to know about the pendency of the said proceeding before the learned Senior Civil Judge, Sundargarh and filed an application under Order 1 Rule 10 of CPC for their impletion as parties to the proceeding, i.e., L.A. Reference Case No.317 of 2013 for apportionment of the awarded compensation. But, the learned Senior Civil Judge, Sundargarh, vide order dated 04.12.2023, rejected the application filed by the petitioners under Order-1 Rule-10 of CPC on the ground of maintainability.
10. In Basudeva Panda v. State of Orissa, AIR 1999 Orissa 158, the maintainability has been considered taking into consideration Corpus Juris Secundum, Volume 54 to the following effect:- Page 15 of 19
// 16 "The word "maintainable" is derived from the word "maintain". To "maintain" an action is not always the same as bringing an action; it connotes the idea of supporting an action which has already been brought. The verb "to maintain" signifies to support what is already brought into existence. The ordinary meaning of the word "maintain" in legal phraseology is to begin; to bring, to commence, to institute. In another sense it may mean to carry on, to continue, to prosecute with effect; to continue or preserve in or with. The word when applied to actions, has three meanings. One meaning of the term is to commence; to begin: to bring:
to institute. However, it has been said with reference to actions that maintain' means something more than to commence, and carries a different meaning from 'begin' or 'institute'. Thus the second meaning of the word is to continue; to carry on; to support, as contradistinguished from to institute, the action that has already been brought; to persevere in or with; to commence and prosecute to a conclusion. In accordance with this view, It has frequently been said that to maintain a suit is to uphold, continue on foot, and keep from collapse a suit already begun. Where the word is employed to signify either the first or second meaning, it may comprehend the institution as well as the support of the action, including the commencement of or right to institute an action, and in this sense it implies that an action must be begun before it can be maintained. The third meaning of the term is to commence and prosecute to a conclusion that which has already been begun. In addition, the term is often used to signify an action yet to be instituted. A prohibition against the maintaining of an action or suit may or may not indicate a prohibition against beginning or commencing it."
11. In view of the meaning attached to the word 'maintainability', as mentioned above, and applying the same to the present context, since right has been Page 16 of 19 // 17 accrued in favour of the present petitioners by virtue of purchase of land by their father measuring Ac.0.50 dec from Plot No.247 under Khata No.49, their claim for impletion of parties to the proceeding should not have been ignored or rejected by the learned Senior Civil Judge, Sundargarh on the ground of maintainability.
12. In M/s. Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition), Neyvely and others, AIR 1995 SC 1004 : (1995) 3 CCC (SC) 642, the apex Court in paragraph-8 of the said judgment held as follows:
"8. In the case of Bihar State Electricity Board v. State of Bihar, 1994 (2) Scale 355, the facts were that the land was acquired by the State Government for the purpose of construction of 33/11 KV Mohania Sub- station and staff quarters. After the reference made under Section 18, the Civil Court had enhanced the compensation. The State filed the appeals and the Board sought to be impleaded as a party-respondent in the pending appeals but was rejected. They filed the writ petitions and questioned the award of the Civil Court but the High Court dismissed writ petitions. This Court held that the Electricity Board for whose benefit the land was acquired was not only a person interested under Section 3(b) of the Act but also a necessary and proper party under Order 1, Rule 10 of C.P.C. The Board is entitled to file even an appeal by leave of the Court. Accordingly instead of directing to maintain the writ petitions, this Court directed the Board to be impleaded as party-respondent in the pending appeals, filed by the State and to raise all the contentions impugning Page 17 of 19 // 18 the legality of the enhanced award of the Civil Court. In Union of India v. Kolluniramaiah, (1924) LSCC 367, in an acquisition for Union of India under R. & A. of Immovable Property Act, 1952, the arbitration and in first appeal the High Court enhanced the compensation without impleading Central Govt. On appeal a Bench of three judges of this Court set aside the High Court Order holding that Union of India ought to have been impleaded before the arbitration and the High Court and remitted the case to the High Court treating it as cross-objection and directed the High Court to dispose it off."
13. In view of such position, considering the grievance of the petitioners and taking into consideration the aforesaid law laid down by the apex Court in M/s. Neyvely Lignite Corpn. Ltd. (supra), this Court is of the considered view that the petitioners, being the legal representatives of the original purchaser, who purchased the land measuring Ac.0.50 dec from Plot No.247 under Khata No.49, have right to be considered for apportionment of the awarded amount along with other claimants, who are parties before the learned Senior Civil Judge, Sundargarh.
14. In the above view of the matter, the order dated 04.12.2023 passed by the learned Senior Civil Judge, Sundargarh dismissing the application filed Page 18 of 19 // 19 under Order 1 Rule 10 of CPC on the ground of maintainability cannot be sustained in the eye of law. Accordingly, the same is liable to be quashed and is hereby quashed. Thereby, this Court remits the matter to the learned Senior Civil Judge, Sundargarh to hear the petition filed under Order-1 Rule-10 afresh and implead the present petitioners as parties to L.A. Reference Case No.317 of 2013 and pass appropriate order by affording opportunity of hearing to them, along with other claimants, for just and proper adjudication of the case for apportionment of the compensation amount amongst the claimants in accordance with law.
15. In the result, therefore, the writ petition is allowed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree.
Signature Not Verified (G. SATAPATHY)Digitally Signed Signed by: ALOK RANJAN SETHY
JUDGE Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 19-Apr-2024 18:10:03 Orissa High Court, Cuttack The 16th April, 2024, Alok Page 19 of 19