Akula Garanayak and ors. Vs.

Akula Garanayak and ors. vs State of Orissa and ors.

Type Court Judgment Court Orissa Decided Mar 15, 2010

~11 min read

https://sooperkanoon.com/case/913365

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/913365
Court: Orissa High Court
Judge: I.M.Quddusi; Sanju Panda, J
Decided On: Mar 15, 2010
Case Number: W.P. (C) NO.3225 OF 2009.
Subject: PropertyCivil

Case Summary

AI-generated summary - not the official court judgment text.

[Aftab Alam ; R.M. Lodha, JJ.] - Narcotics Drugs & Psychotropic Substance Act, 1985 - Sections 8 - Prohibition of certain operations -- The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22. The trial court by judgment and order dated 9.11.2005 passed in Special Case No.4/20...

Key legal issue: PropertyCivil
Acts & sections: Land Acquisition Act, 1894 - Section 4(1), 18, 28-A(1), 11; Code of Civil Procedure (CPC) - Order 41 Rule 1.

Parties & Advocates

Appellant / Petitioner

Akula Garanayak and ors.

Advocate M/s. Biswa Mohan Pattnaik, Advs.

Respondent

State of Orissa and ors.

Legal References

Acts: Land Acquisition Act, 1894 - Section 4(1), 18, 28-A(1), 11; Code of Civil Procedure (CPC) - Order 41 Rule 1.

Excerpt

[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. .....the date of receipt of the order. as the land acquisition officer did not consider the same within the stipulated time, the petitioners filed contempt application no.374 of 2006. during pendency of the said contempt application, the petitioners' application under section 28-a(1) of the act was rejected on 12.6.2007 holding that the application was filed within stipulated period as provided under section 28-a of the act but the applicants submitted the application along with a xerox copy of the judgment. the applicants were given opportunity to submit the certified copy of the judgment. however, they filed the certified copy in december, 2006 which was not within three months of the pronouncement of the judgment of the civil court, talcher. therefore, their application for re-determination of compensation under section 28-a of the act could not be considered. challenging the said order, wp(c) no.5089 of 2008 was filed which was disposed of by this court on 23.6.2008 directing the zone officer, deogarh to verify the records and arrive at a conclusion whether the judgment passed in fa no.187 of 1995 was available in the record and whether the petition under section 28(a) was filed within three months from the said judgment as well as the time spent for obtaining the certified copy and dispose of the matter on merit afresh within a period of six months, if there was no other impediment.4. after disposal of the said writ petition, the zone officer heard the matter on 19.12.2008 and considering the materials available on record rejected the application holding that the application dated 14.7.1995 was filed without certified copy of the judgment passed in la misc. case no.3 of 1994. hence, the petitioners were asked to file the said certified copy. they filed the said certified copy in december, 2006 which disclosed that they applied for the same on 11.12.2006. fa no.187 of 1995 was filed by the state and the petitioners also field their cross-objection in the same......

Full Judgment

1. Challenge has been made in this writ petition to the order dated 19.12.2008 passed by the Zone Officer, Land Acquisition & Resettlement and Rehabilitation Officer, Rengali Multipurpose Project, Deogarh in LA Case No.961 of 2006.

2. In pursuance of the notification under Section 4(1) of the Land Acquisition Act (in short, "the Act") published in the year 1978, the entire village of Badaludunga of Pallahara Block including the residential houses of the petitioners was submerged in the Rengali Dam Project. Applying multiplier theory, the Land Acquisition Officer, Deogarh, fixed the compensation for the acquired land as follows:

"KISSAM RATE

Sarad-I Rs.4,500/- per acre

Homestead Rs.4,500/- per acre

Sarad-II Rs.3,800/- per acre

Sarad-III Rs.3,300/- per acre

Goda-I Rs.2,500/- per acre

Goda-II Rs.2,000/- per acre"

Being aggrieved by the said award, some of the villagers filed applications under Section 18 of the Act to refer the matter to the Court. The learned Civil Judge (Senior Division), Deogarh in L.A Misc. Case No.25 of 1991 enhanced the rate of compensation at the rate of Rs.22,400/- per acre, in LA Misc. Case No.87 of 1991 at the rate of Rs.21,000/- per acre and in LA Misc. Case No.9 of 1992 at the rate of Rs.20,000/- per acre. Even though the present petitioners could not file applications under Section 18 of the Act to refer the matter to the civil court, after the court enhanced the awarded amount they filed applications under Section 28-A(1) of the Act within the stipulated time for enhancement of the award. The civil court also enhanced the awarded amount on 17.4.1995 in another case, i.e., LA Misc. Case No.3 of 1994. Being aggrieved by the said award, the State Government filed FA No.187 of 1995 before this Court which was disposed of on 19.6.2000.

3. The present petitioners filed OJC No.2546 of 2002 which was disposed of by this Court on 25.8.2005 with a direction to the Land Acquisition Officer to consider the applications of the petitioners filed under Section 28-A(1) of the Act within three months from the date of receipt of the order. As the Land Acquisition Officer did not consider the same within the stipulated time, the petitioners filed Contempt Application No.374 of 2006. During pendency of the said contempt application, the petitioners' application under Section 28-A(1) of the Act was rejected on 12.6.2007 holding that the application was filed within stipulated period as provided under Section 28-A of the Act but the applicants submitted the application along with a xerox copy of the judgment. The applicants were given opportunity to submit the certified copy of the judgment. However, they filed the certified copy in December, 2006 which was not within three months of the pronouncement of the judgment of the Civil Court, Talcher. Therefore, their application for re-determination of compensation under Section 28-A of the Act could not be considered. Challenging the said order, WP(C) No.5089 of 2008 was filed which was disposed of by this Court on 23.6.2008 directing the Zone Officer, Deogarh to verify the records and arrive at a conclusion whether the judgment passed in FA No.187 of 1995 was available in the record and whether the petition under Section 28(A) was filed within three months from the said judgment as well as the time spent for obtaining the certified copy and dispose of the matter on merit afresh within a period of six months, if there was no other impediment.

4. After disposal of the said writ petition, the Zone Officer heard the matter on 19.12.2008 and considering the materials available on record rejected the application holding that the application dated 14.7.1995 was filed without certified copy of the judgment passed in LA Misc. Case No.3 of 1994. Hence, the petitioners were asked to file the said certified copy. They filed the said certified copy in December, 2006 which disclosed that they applied for the same on 11.12.2006. FA No.187 of 1995 was filed by the State and the petitioners also field their cross-objection in the same. The said first appeal was disposed of on 19.6.2000 enhancing the awarded amount. Since the appeal was a continuation of the proceeding, the final order in the first appeal became the final order of the proceeding. Therefore, the limitation started from 19.6.2000. The first application dated 14.7.1995 was based on the judgment in LA Misc. Case No.3 of 1994 and it was not accompanied by the certified copy. Therefore, the same was rejected. The said technical defect was never cured by the applicants and the award had been re-fixed by this Court. Hence, the Zone Officer had to consider whether the application dated 7.12.2005 along with the certified copy of the judgment passed in LA Case Misc. No.3 of 1994 and the xerox copy of FA No.187 of 1995 was filed within the period of limitation or not. The period of three months of limitation as stipulated under Section 28-A(1) of the Act completed on 19.9.2000. The copy of the judgment in FA No.187 of 1995 showed the date of application to be 29.7.2000 and the date of delivery to be 16.8.2000 so the copy period was 19 days. Therefore, the application should have been filed by 8.10.2000. But it was filed on 7.12.2005 which was more than five years after the period of limitation. Hence, the application could not be considered and the same was rejected as it was made much beyond the period of limitation. The said order is impugned in this writ petition.

5. Learned Senior Advocate appearing for the petitioners submitted that from the order dated 12.6.2007 it appears that the petitioners filed the application under Section 28-A(1) of the Act within the stipulated time. Therefore, the authority should have considered the application on merit and re-determined the award amount as per the direction given in LA Misc. Case No.3 of 1994 as well as FA No.187 of 1995 and the Zone Officer should not have rejected the application of the petitioners on the ground that the same was barred by limitation. Therefore, the impugned order is liable to be set aside.

6. We have called for the LCR and perused the same. Admittedly the order was passed by the Zone Officer on 12.6.2007. This Court in WP(C) No.5089 of 2008 directed the Zone Officer, Deogarh to examine whether the application of the petitioners was filed within the period of limitation after excluding the time consumed for obtaining the copy as per the certified copy. The Zone Officer though held that the application under Section 28-A(1) of the Act was filed within the stipulated time, the petitioners did not file the certified copy of the judgment along with the application.

7. Section 28-A(1) of the Act provides for re-determination of the amount of compensation on the basis of the award of the Court. For better appreciation, Section 28-A(1) of the Act is quoted below:

"28-A. Re-determination of the amount of compensation on the basis of the award of the Court-(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Sec.11, the persons interested in all the other land covered by the same notification under Sec.4, Sub-section (1) and who are also aggrieved by the award of the Collector, may, notwithstanding that they had not made an application to the Collector under Sec.18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court;

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."

8. From the above, it is crystal clear that the aforesaid Section stipulates that an application for re-determination of the amount of compensation has to be filed within three months, but it does not strictly stipulate that the application shall be accompanied by a certified copy of the order of the Court. From a plain and simple reading of the aforesaid provision, it is clear that the petitioners' application was within the time after the Court directed to re-determine the compensation on 17.4.1995 so also as held by the Zone Officer on 12.6.2007. The said order reveals that LA Misc. Case No.3 of 1994 was disposed of on 17.4.1995 by the learned Civil Judge (Senior Division), Deogarh. An application under Section 28-A(1) of the Act was filed on 14.7.1995 and the said Section does not provide that the application must be accompanied by a certified copy.

9. This Court also considered the submissions made by the learned counsel for the State that this Court in WP(C) No.5089 of 2008 directed the Zone Officer to verify the record to arrive at a conclusion whether the application was filed within three months or not taking into consideration the certified copy of the judgment. But such a situation arose only to compute the period of limitation of three months. Had the application been filed being accompanied by the certified copy, the petitioners would have been entitled to the exclusion of the time consumed for obtaining such certified copy. But, admittedly, the petitioners along with others who were thirty in numbers had filed the application within the stipulated time along with the xerox copy of the judgment. Therefore, on that ground their application should not have been rejected though they did not file the certified copy of the judgment. The requirement of law is that as per Section 28-A(1) of the Act an application has to be filed within a period of three months for re- determining the awarded amount and the said Section does not specifically provide that the application must be accompanied by a certified copy of the judgment.

10. To appreciate this fact, we may refer to Order 41 Rule 1 of the Civil Procedure Code wherein it is provided that a memorandum of appeal shall be accompanied by a copy of the judgment. In such a situation, a copy of the judgment should be filed. But Section 28-A(1) of the Act provides 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. While interpreting the said provision, it cannot be said that an application under the said provision is to be filed accompanied by a certified copy of the judgment.

11. There is no doubt that the Land Acquisition Act is a benevolent statute and the Government gives compensation to the land ousters for taking away their land by way of land acquisition. Further Section 28-A(1) of the Act provides that even if the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4(1), even though they had not made an application to the Collector under Section 18, may file an application for enhancement of the award. However, if the Court has enhanced the award on a reference of other persons then also the land ousted can file an application under Section 28-A(1) of the Act and will get the benefit of such enhancement of the award. Therefore, the provision should be interpreted for the benefit of the land ousted and not against the interest of the land outs tee who has lost his property and also suffered in not getting the proper compensation considering the value of the property.

12. In view of the discussions made in the foregoing paragraphs, the order dated 19.12.2008 passed by the Zone Officer, Land Acquisition & Resettlement and Rehabilitation Officer, Rengali Multipurpose Project, Deogarh in LA Case No.961 of 2006 is illegal and not sustainable in the eye of law. Therefore, this Court sets aside the said impugned order dated 19.12.2008 passed in LA Case No.961 of 2006 and directs the Zone Officer, Deogarh, to re-determine the awarded amount. Since this is an old matter of the year 1995, this Court directs him to re-determine the awarded amount within a period of two months and disburse the same to the petitioners immediately thereafter. Writ petition allowed.

Same Court & Year Orissa · 2010 Same Parties Akula Garanayak and ors. vs State of Orissa and ors. Same Subject PropertyCivil Same Judge I.M.Quddusi; Sanju Panda, J Acts & Sections Land Acquisition Act, 1894 - Section 4(1), 18, 28-A(1), 11; C...

PropertyCivil