Judgment:
P.K. Tripathy, J.
1. Plaintiff in Money Suit No. 374 of 1974 of the Subordinate Judge, First CourL, Cutback is the appellant and the defendants 1 and 4 are respectively the respondents. Plaintiff filed the suit for realisation of Rest. 14,463.43 paise including damages from defendants Nos. 1 and 4 jointly and severally. As per the impugned judgment passed on 3-10-1981, learned Subordinate Judge, granted the decree as against the defendant No. 1 with cost and dismissed the suit on contest against the defendant No. 4. Hence, the plaintiff has filed this appeal to make liable defendant No. 4 for payment of the decretal dues jointly and severally with the defendant No. 1. Plaintiff filed the appeal as a pauper and after disposal of that application on 28-4-1987 the First Appeal was registered.
2. Most of the facts are admitted position on record being supported by judgments and orders passed by the Civil Courts in earlier proceedings. Be that as it may, the case as projected by the plaintiff and as controverted by the defendants Nos. 1 and 4 in their separate written statements are stated in brief as follows.
3. Gauranga Nayak, the defendant No. 3 entered into an agreement for sale with the plaintiff but did not execute the sale deed even after receipt of the full consideration amount. Thus, plaintiff filed Title Suit No. 34 of 1963 in the Court of 1st Munsif, Cuttack seeking for the relief of specific performance of contact with respect to Ac. 0.242 decimals out of Ac. 0.355 decimals of land from Plot No. 1391 of Khata No. 789, under Tauzi No. 2615, situated in Mouza-Bahara Bisinabara, under Sadar Police-Station, Cuttack. That suit was decreed in favour of the plaintiff and on the failure of the defendant No. 3 to execute the sale deed in terms of the decree, plaintiff filed Execution Case No. 36 of 1969 and the 1st Munsif, Cuttack on 29-1-1971 executed the sale deed in favour of the plaintiff. In the mean time, the State of Orissa acquired Ac. 0.210 decimals of land from the said Plot No. 1391 for the purpose of construction of staff quarters of Orissa State Electricity Board. In that respect Notification under Section 4(1) was made on 24-2-1967 and declaration on 15-4-1967. The Land Acquisition Collector after making assessment of the award at Rs. 26,534.44 paise passed order for payment of the same to defendants Nos. 1 and 2 granting 50% of such amount to each of them. An objection filed by the plaintiff to claim half share of the compensation amount on the basis of title and possession declared in Title Suit No. 34 of 1963. The Land Acquisition Collector deferred the matter for consideration and directed the plaintiff through her husband to file the copy of the judgment and decree. When the matter stood thus on 21-7-1969 an application said to be signed by the plaintiff's husband with drawing the claim of the plaintiff was entertained by the Land Acquisition Collector and he made payment of the amount to the defendant No. 1. In that respect, plaintiff alleges lack of bona fide in the conduct of the Land Acquisition Collector and clandestine manner in which the whole matter was man aged by defendant No. 1 in connivance with the said officer inasmuch as according to the plaintiff neither she nor her husband filed any application withdrawing her claim. She has further stated that defendant No. 1's claim for title and possession was dismissed in 99 of 1969 Title Suit No.---------filed by the said 2 of 1971 defendant so also the Title Appeal No. 1 14 of 1975 preferred against that judgment. Plaintiff has also stated that on her approach the Land Acquisition Collector made a reference to the Civil Court under Sections 18 and 30 of the Land Acquisition Act. That reference was registered as Misc. Case No. 51 of 1969 in the Court of Subordinate Judge, Cuttack. On 23-7-1975, learned Subordinate Judge disposed of that reference allowing the claim of the plaintiff. Learned Subordinate Judge in that Award decided to maintain the value determined by the Land Acquisition Collector but directed the later to determine the amount of compensation in favour of the plaintiff proportionate to the extent of land lost by her because no positive evidence was adduced before the Subordinate Judge about the extent of land lost by the plaintiff because of such acquisition. It is the admitted position on record that consequent upon that direction in the award passed by the Subordinate Judge no further follow up action was taken by the Land Acquisition Collector. Therefore, plaintiff instituted the money suit claiming the compensation amount of Rs. 13269.22 paise and damages of Rs. 1194.21 paise with the prayer to grant a decree against defendants Nos. 1 and 4 jointly and severally. She has also alleged that a criminal case was initiated by the Police for clandestine manner in which the Land Acquisition Officer paid compensation amount to defendant No. 1 and ultimately a charge-sheet was filed.
4. In his written statement, defendant No. 1 stated that defendant No. 3 was not competent to enter into any agreement with the plaintiff nor the decree passed in Title Suit No. 34 of 1963 is binding on the other co-sharer so also the defendant No. 1. He has further stated that his father Uchhaba Samantaray came to possess the suit plot on the basis of a lease deed executed in his favour by uncle of the defendant No. 3 on 12-4-1937. Said Uchhaba Samantaray continued to possess the land till his death in the year 1963 and after him the defendant No. 1 as his son succeeded to that property and was possessing the same when it was acquired by the State. Defendant No. 1 also stated that the husband of the plaintiff filed application to withdraw the claim and because of that half of the compensation amount was paid to him (D-1) and in that respect there was no collusion or connivance between the defendant No. 1 and the Land Acquisition Collector.
5. In the written statement filed by the defendant No. 4 the allegation of connivance between the defendant No. 1 and the Land Acquisition Collector has been denied but the claim in the suit is resisted on the ground that compensation amount has already been disbursed in favour of defendant No. 1 because of not substantiating her case by the plaintiff within the time permitted to her.
6. On the basis of such pleadings the trial Court framed as many as nine issues. Out of the same issues Nos. 5 to 9 reads as hereunder :--
'5. Whether the decree passed in T.S. 34 of 1963 in the Court of the First Munsif, Cuttack and the sale deed executed in favour of the plaintiff through Court in pursuance of the order in Execution Case No. 36 of 1969 are binding on the defendants?
6. Whether the plaintiff had right, title, interest and possession over the acquired land?
7. Whether the application for withdrawing the objection of the plaintiff before the Land Acquisition Officer is forged and not genuine?
8. Whether the defendant No. 1 is liable to return the amount of Rs. 13,269.22 paise to the plaintiff required as compensation?
9. To what relief, if any, is the plaintiff entitled?'
While recording findings on such issues in favour of the plaintiff, learned Subordinate Judge did not grant the relief of recovery of money as against defendant No. 4 on the ground that it could not have been possible on the part of the Land Acquisition Collector if the withdrawal application was genuine or fake and therefore when the amount was admittedly received by the defendant No. 1 it is only the said defendant who is liable to refund and accordingly plaintiff is entitled to recover the decretal dues only from defendant No. 1.
7. Learned counsel for the appellant states that the finding recorded by learned Subordinate Judge in Misc. Case No. 51 of 1969 in his Award dated 23-7-1975, marked as Ext. 4, clearly caste asperation on the conduct of the Land Acquisition Collector for disbursement of the amount in favour of the defendant No. 1 in a hasty manner and in that respect that Court did not find any bona fide in the conduct of the Land Acquisition Collector. That award and findings of the Subordinate Judge was not challenged either by the Land Acquisition Collector or by the State and therefore, so far as the factual position is concerned that finding has reached to its finality. When the matter stands at that and there is no evidence worth the name from the side of the defendant No. 4 to grant protection to the Land Acquisition Collector for the alleged misconduct, learned Subordinate Judge in the money suit should not have granted a clean chit to the defendant No. 4 by exempting it from its liability. Accordingly, he prays to modify the decree by making it operative and executable against the defendants Nos. 1 and 4 jointly and severally.
8. Learned Addl. Standing Counsel on the other hand argues that in the absence of recording a specific finding by the Subordinate Judge in the money suit regarding any conduct of fraud collusion or negligence on the part of the Land Acquisition Officer and when admittedly the relevant compensation amount, though wrongly, was paid to defendant No. 1, therefore, State's liability is not made out to satisfy the decree under challenge. He also argues that in view of the provision of Section 31(2) of the Land Acquisition Act, plaintiff is entitled to claim for recovery of compensation only from defendant No. 1 and not from the defendant No. 4. In that respect, he refers to and places before the Bench the cases of Secretary of State for India v. Kuppuswami Chetti, AIR 1924 Madras 521, Shri Deo Sansthan, Chinchwad v. Chintaman Dharnidhar Deo, AIR 1962 Bombay 214, and State of M.P. v. Smt. Sugandhi, AIR 1980 Madh Pra 19.
9. From the above contention of the parties, it boils out to the core issue for consideration of this Court is as to whether the State of Orissa represented through Collector, i.e. the defendant No. 4 is liable to make payment of the compensation amount to the plaintiff jointly and severally with defendant No. 1.
10. As noted earlier Ext. 4 is the Award passed by Subordinate Judge, Cuttack on 23-7-1975 in L.A. Case No. 51 of 1969. That document contains comments that everything was not well relating to disbursement of the compensation amount by the Land Acquisition Officer in favour of the defendant No. 1. In the said judgment learned Subordinate Judge recorded the finding that --'I need not prob in the matter here as to whether under what circumstance the Land Acquisition Collector took such a hasty step in passing the award in favour of Krushna Ch. Samantray without being satisfied over his right, title and interest and also making him payment before the date fixed for hearing of the petition of the petitioner on 28-7-69 although such payment was clearly contrary to law and without authority. I need not comment anything more on the action of the L.A. Collector then since the matter is under investigation.' (Underlining is made by this Court to put emphasis).
11. The aforesaid factual finding in Ext. 4 was not challenged by the L.A. Collector or even by the State in any higher forum. Therefore, the said finding operates as against the defendant No. 4. The allegation in the plaint, the factual backdrop under which defendant No. 1 was paid half of the compensation amount and a criminal case being instituted against him for such clandestine disbursement of money are the circumstances go to indicate that the L.A. Collector did not act bona fide while discharging his duty relating to payment of the compensation and disbursing the same to a wrong person i.e. the defendant No. 1. Though the evidence in that respect is clear but learned Subordinate Judge, for reasons best known to him, did not record a finding when the matter related to claim of recovery of the compensation amount has been advanced both against the defendants No. 1 to 4. As the first appellate forum this Court is also a Court of fact and therefore, on appreciation of the evidence on record, this Court records the aforesaid finding after perusal of the pleadings and evidence on record.
12. Learned counsel for the State banked on Section 31(2) of the Land Acquisition Act as a shield to protect the defendant No. 4 from the liability of making payment of compensation to the plaintiff jointly and severally with the defendant No. 1. Sub-Section (2) of Section 31 reads as hereurider :--
(2) If they shall not consent to receive it, or if there be no person competent to alienate the lands, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted :
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount :
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18 :
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
13. The third proviso from the above quoted provision of law provides that a person if receives compensation amount though legally not entitled to the same, then he is liable to pay the same to the person who is lawfully entitled to the same. The said provision ipso facto does not disentitles the looser of the land or forbids him to claim the relief of recovery of compensation amount jointly and severally from the State as well as the person who has received it wrongly. On the other hand, while adjudicating a dispute of the present nature Court should take into consideration all relevant facts and evidence and circumstances leading to payment by the Land Acquisition Officer to a wrong person and to decide if the circumstance available on record are sufficient to exonerate the State or to pass a decree for recovery jointly and severally.
14. In the above context, this Court finds no relevancy of the ratio in the case of Secretary of State for India, AIR 1924 Mad 521 (Supra) and Shri Deo Sansthan, Chinchwad, AIR 1962 Bom 214 (supra). In the case of State v. Smt. Sugandhi, AIR 1980 Madh Pra 19 (supra), learned Judges of the Division Bench of Madhya Pradesh High Court have judiciously consider such a contention and have stated that (Para 25 of AIR) :--
'As to the fourth point, normally the State is not a necessary or a proper party to a suit for recovery of compensation alleged to have been paid to a wrong person. Having paid the amount after the award was made, to a person who came forward to claim it, the State should normally stand absolved from the liability. The person who ought to have received the compensation for reason of his better title has his remedy against the person to whom the money has been wrongly paid. Third proviso to Section 31(2) of the Land Acquisition Act saves such a right to the person lawfully entitled to compensation, to claim the same from the person to whom the amount has been wrongly paid. There are, however, authorities for the proposition that where the Collector has shown negligence in paying to a wrong person (such negligence as would be actionable), the Collector should be asked to pay again. It is not right, the authorities say, that the Government should throw on a party whose property it has compulsorily acquired, the risk and burden of recovering the compensation from someone to whom the Government has wrongly paid it. (See K.N.K.R.M.K. Chattyat Firm v. Secy. of State, AIR 1933 Rang 176, Deputy Collector, Cocanada v. Maharaja of Pittapur, (1926) ILR 49 Mad 519 : AIR 1926 Mad 492 (1).'
However, in that reported case learned Judge did not find want of bona fide in the conduct of the Land Acquisition Officer and therefore declined to pass a decree jointly and severally.
15. From the foregoing discussions this Court finds that law does not prohibits grant of a decree jointly and severally. Evidence on record i.e. Ext. 4 and oral evidence adduced from the side of the plaintiff goes to show that the Land Acquisition Collector did not act bona fide while hastily made payment of half of the compensation amount to defendant No. 1 notwithstanding a protest raised from plaintiff's side disputing to such rights of defendant No. 1. Defendant No. 4 has not been able to prove on record that such payment was made to defendant No. 1 after due enquiry or in the absence of any protest or resistance from any quarter. Thus the evidence on record does not protect the defendant No. 4 against a decree.
16. The trial Court has also committed another mistake by granting a decree of the claimed amount in favour of the plaintiff. Fact remains that plaintiff is entitled to the proportionate compensation to the extent she lost from the purchased lands and if that comes within the half share of her vender. It is also stated at the Bar that plaintiff has also received compensation for acquisition of remaining portion from the disputed plot. There is no clear and cogent evidence available on record in that respect. Therefore, while passing a decree for recovery of the compensation amount by the plaintiff jointly and severally from the defendant to Nos. 1 and 4, it is ordered that plaintiff is entitled to recover such amount proportionate to the extent of land lost by her from out of that Ac. 0.210 decimals. If the loss of the land sustained by the plaintiff is for more than 50% of the land acquired under that Notification then also her claim shall remain confined only to 50% of the compensation amount determined under the concerned acquisition proceeding inasmuch as she has not claimed for any further compensation for loss of such land. If the loss of the land by her is for any lessor area then decree shall be passed proportionately for a lesser amount. While modifying the judgment and decree of the trial Court accordingly the trial Court is directed to determine that aspect to pass a decree for a certain amount.
17. It appears from Ext. 4 i.e., the Award passed in Land Acquisition Case No. 51 of 1969 that the Land Acquisition Collector had been directed to determine the above aspect for payment of proportionate compensation to the plaintiff. There is nothing on record to indicate that the Land Acquisition Collector undertook any follow up action to comply with such direction in that Award. There has been a gap of about three decades and as yet plaintiff is to get the compensation amount which is her legitimate due. Statutory interest in such a case is inadequate relief against the financial loss and damage due to non-availability of such money at her disposal. Therefore, it will be appropriate for the defendant No. 4 to get the proportionate compensation determined, if not already done, expeditiously and if possible to make payment of the same as per that Award (Ext. 4). Unless the defendant No. 4 shall attend to that job sincerely, then the trial Court while determining the amount of compensation which the plaintiff is entitle to recover shall also allow appropriate amount towards damage as against the defendants jointly and severally.
In the result, the appeal is allowed and the decree of the Court below stands modified in the following manner :--
(a) Plaintiff is entitle to a money decree jointly and severally against defendant Nos. 1 and 4 for the compensation amount which shall be proportionate to the land lost by her under the concerned Notification but in any case such amount shall not exceed the amount of compensation claimed in the suit.
(b) It will be appropriate and desirable for the defendant No. 4 to verify and determine the amount of such compensation which plaintiff should get and if possible to pay the same expeditiously and in the interest of equity and justice.
(c) Notwithstanding the proceeding direction to defendant No. 4 the trial Court shall take further evidence, if any, adduced by the parties or any of them to determine the amount for which the decree shall be passed and at that stage looking to the conduct of the defendant No. 4 trial Court shall determine if any amount shall be awarded towards damage and if so, the quantum thereof. For that limited purpose the case be regarded as remanded.
(d) Hearing-fee is assessed at contested scale and the defendants/respondents 1 and 4 jointly and severally bear the cost all throughout.