Sarat Mohanty vs State Of Odisha And Others

This matter is taken up through hybrid mode.

Petitioner in this writ petition seeks to assail the order dated 17th February, 2025 (Annexure-5) passed by the Zone Officer-cum-L.A. Collector, Subarnarekha Irrigation Project, Laxmiposi Zone, Baripada (Opposite Party No.2) in not entertaining an application filed under Section 73(1) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for brevity, ‘the Act’) and referring the matter back to the Authority for adjudication.

Mr. Nayak, learned counsel for the Petitioner submits that for acquisition of land of the Petitioner pertaining to Plot No.638 (Sarad-III) measuring an area of Ac.1.13 dec. under Khata No.137/34 of Mauza Nalagaja sand Plot No.606 measuring an area of Ac 0.09 dec, Plot No.607 measuring an area of AC 0.08 Dec, under khata no.18 of Mauza Nalagaja under Tahasil-Rasgobindpur in the district of Mayurbhanj (for brevity, ‘the case land’), compensation was also awarded in favour of the Petitioner. Some of the co-villagers being not satisfied with the quantum of compensation in their favour filed an application before the Collector, Mayurbhanj to refer the matter to the Authority. Accordingly, their applications were referred to the Authority under Section 64 of the Act and compensation awarded in their favour was enhanced. The Petitioner stating that the land of Sribatatsha Mohanty of village-Nalagaja, P.S.-Morada in the district of Mayurbhanj acquired under the same notification was enhanced by the LAR&R Authority, Cuttack in L.A.R. Case No.185 of 2022 vide judgment dated 11th April, 2023, filed an application under Section 73(1) of the Act for enhancement of the compensation.

3.1. It is submitted by Mr. Nayak, learned counsel for the Petitioner that the Land Acquisition Collector should have adjudicated the matter on merit and passed an award under Section 73(2) of the Act. Instead, he referred the matter to the Authority under Section 73(3) of the Act for adjudication. Hence, this writ petition has been filed challenging the said order under Annexure-5.

3.2. Mr. Nayak, learned counsel for the Petitioner further submits that on an application filed under Section 73(1) of the Act, the Land Acquisition Collector is required to pass an award under Section 73(2) of the said Act. Any person, if aggrieved by such award may file an application to refer the matter to the Authority and in that event the Land Acquisition Collector could have referred the matter under Section 73 (3) of the Act. In the instant case, neither award under Section 73(2) was passed nor was any application filed to refer the matter to the Authority. Thus, there was no occasion on the part of the Land Acquisition Collector to refer the matter to the Authority for adjudication. He, therefore, submits that the impugned order under Annexure-5 is without jurisdiction. Hence, he prays for setting aside the impugned order under Annexure-5 and to remit the matter to the Land Acquisition Collector for fresh adjudication of the petition under Section 73(1) of the Act.

Mr. Nayak, learned Additional Government Advocate, on instruction, submits that the kisam of the case land of the petitioner and the award of the Authority relied upon by him did not tally as observed in the impugned order under Annexure-5. Thus, the same requires adjudication of the Authority. Accordingly, the Land Acquisition Collector referred the matter to the Authority for adjudication.

Considering the submissions made by learned counsel for the parties, this Court finds that an application under Section 73(1) of the Act was filed by the Petitioner for enhancement of compensation in terms of judgment dated 11th April, 2023 passed by the LAR&R Authority, Cuttack in L.A.R. Case No.185 of 2022. It further appears that the Land Acquisition Collector while adjudicating the matter made the following observation:

“Petitioner filed the grievance petition vide Annexure-3 within stipulated period i.e. on dt. 07.07.2023 as per U/s.73(1) of RFCTLAR&R Act, 2013.

The Petitioner was awarded vide L.A. Case No.26/2018 in respect of land pertaining to Plot No.606 (Sarad-II) measuring an area of Ac.0.07 dec. out of total Ac.0.09 dec., and 607 (Sarad-II) measuring an area of Ac.0.01 dec. out of total Ac.0.08 dec., under Khata No.18 which stands recorded in the name of his maternal grandmother Smt. Kumudini Pattanaik W/o-Umakanta Pattanaik. Also another patch of land pertaining to Plot No.638 (Sarad-lII) measuring an area of Ac.0.56 dec. out of total Ac.1.13 dec., under Khata No.137/34 which stands recorded in the name of his maternal grandmother Smt. Kumudini Pattanaik W/o-Umakanta Pattanaik and mother Sailabala Mohanty W/o-Santosh Kumar Mohanty.”

5.1. It thus appears that the Land Acquisition Collector in the impugned order observed that the land of the Petitioner does not tally with the kisam of the land involved in L.A.R. Case No.185 of 2022.

Section 73 of the Act deals with redetermination of compensation. It reads as under;

“73. Re-determination of amount of compensation on the basis of the award of the Authority.– (1) Where in an award under this Chapter, the Authority concerned allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 23, the persons interested in all the other land covered by the same preliminary notification under section 11, and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector, by written application to the Collector within three months from the date of the award of the Authority concerned require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Authority: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority concerned.”

6.1. The provision in unambiguous terms stipulates that if the Authority in a reference under Section 64 of the Act passes an award enhancing the compensation awarded by the Collector under Section 23 of the Act, then all persons interested in other land covered under the same preliminary notification under Section 11 of the Act, may file an application under Section 73 (1) of the Act for enhancement of compensation within a period of three months from the date of the award of the Authority, not withstanding that they had not filed any application under Section 64 of the Act against the award passed by the Collector. In that event, the Collector is required to make an inquiry and pass an award determining the compensation payable to the applicant(s) by providing opportunity of hearing to the applicant(s). Any person aggrieved by the award passed by the Collector under Section 73 (2) of the Act, may file an application for referring the matter to the Authority and in that event, the Collector shall refer the matter under Section 73 (3) of the Act.

In the instant case, the Petitioner filed an application under Section 73 (1) of the Act within the stipulated time as observed by the Collector in the impugned order. Thus, the Collector was required to make an inquiry and providing opportunity of hearing to the Petitioner, pass an award determining the compensation payable to the Petitioner. But, the Collector in exercise of power under Section 73 (3) of the Act referred the matter to the Authority. In order to exercise power under Section 73 (3) of the Act, two prerequisites are required to be satisfied; firstly, there must be an award under Section 73 (2) of the Act and secondly, an application is filed by the applicant (Petitioner herein) to refer the matter to the Authority. None of the prerequisites are satisfied in the instant case. Thus, the impugned order under Annexure-5 is not sustainable and is liable to be set aside.

In the instant case, the Collector, while referring the matter to the Authority, made an observation that the kisam of the case land is not similar to the land involved in the reference (L.A.R. Case No.185 of 2022) basing upon which the Petitioner had filed an application under Section 73 (1) of the Act. But the Petitioner claims that the kisam of the case land is similar to the land involved in L.A.R. Case No.185 of 2022 and the award passed by the Authority squarely covers the case of the Petitioner. Further, from the tenor of the impugned order under Annexure-5, it is manifest that the Collector is of the opinion that the Petitioner is not entitled to higher compensation. Thus, the Petitioner, in any event, has to file an application for referring the matter to the Authority under Section 73 (3) of the Act. Taking into consideration the facts and circumstances of the case as stated above, remitting the matter to the Collector to adjudicate the petition under Section 73 (1) of the Act afresh will be an empty formality only and will serve no purpose. In that process, the Petitioner will suffer. Technicalities of law should not stand on the way to do justice.

In view of the above, this Court without delving further into the merit of the order passed under Annexure-5, disposes of the writ petition with a direction that the LAR&R Authority, Cuttack shall do well to consider the reference made by the Zone Officer-cum-Land Acquisition Collector, Laxmiposi Zone, Baripada under Annexure-5 treating it to be a reference under Section 73(3) of the Act.

9.1. Needless to say that the parties concerned shall be given opportunity of hearing to adduce evidence and put forth their case before the Authority.

9.2. Parties are directed to cooperate with the Authority for early adjudication of the reference.

Urgent certified copy of this order be granted on proper application.