STATE OF ORISSA Vs. KISUN SINHA

JUDGEMENT

(1.) In this appeal under Section 54 of the Land Acquisition Act, 1894 (in short, 'the Act'), the State of Orissa represented by the Land Acquisition Collector, Cuttack has challenged the award passed by the learned Subordinate Judge, First Court, Cuttack in a reference under Section 28-A(3) of the Act.

(2.) For the purpose of constructing Kusunpur Minor Irrigation Project, the appellant acquired some lands by issuing notification under Section 4(1) of the Act. The land measuring Ac.2.10 decimals appertaining to plot No. 3 under Khat No. 139 of the respondent was also acquired for the project. Initially, the Collector under the Act passed an award under Section 11 for Rs. 4,547/- which the respondent received without protest. Subsequently, for some other lands acquired for the said project another person namely, Dinabandhu Dayal filed application under Section 18 of the Act for enhancement of the compensation which being received in court was registered as L.A. Misc. case No. 15 of 1983 and in that case, the court determined the compensation at the rate of Rs. 10,000/per acre for agricultural land. After such award of the court, the respondent filed an application before the Collector for redetermination of compensation under Section 28A(1) of the Act and the Collector allowed the application determining the compensation at Rs. 23,358/- at the rate of Rs. 10,000/- per acre. The respondent having found that there was mistake in calculation of the compensation and the Collector had refused compensation for the trees standing on the land filed an application under S. 28-A (3) of the Act before the Collector which was referred to the court. The court ultimately found that the compensation for the land had been duly determined by the Collector. It was also found that the Collector was right in not giving any compensation for any tree allegedly in existence on the acquired land. Accordingly, while upholding the award passed by the Collector on 21-7-1990, the court granted 30% as solatium and 12% additional market value and interest at the rate of 9% per annum for the first year from the date of taking possession and 15% for the subsequent years from 15-7-1974. Being aggrieved by such award, the present appeal has been filed.

(3.) Mr. Das, the learned Addl. Govt. Advocate has raised two contentions. His first contention is that the Collector under the Act having passed the award under Section 11 prior to the Amendment Act of 1984 and the respondent having accepted the compensation as per the award without protest, there was no scope of any reference under Section 28-A of the Act and as such, the impugned award is liable to be set aside. His second contention is that the learned Subordinate Judge could not have granted additional market value of the land at 12% per annum in asmuch as the award passed by the Collector was much prior to the interpretation of the aforesaid Section 23(1A) in the Act. Mr. Panda for the respondent, on the other hand, supports the impugned award. With regard to the first contention raised on behalf of the appellant, his submission is that even if a claimant has received the compensation amount in pursuance of an award passed prior to the amendment Act of 1984 without protest, then also he is entitled to make an application under Section 28-A of the Act and the Land Acquisition Collector is obliged to make a reference to the court. So far as the second contention of the appellant is concerned, his submission is that the impugned award having been passed much after coming into force of the Amendment Act i.e. on 21-7-1990 and the application under Section 38A(3) having been made within lime, the court was quite correct in awarding additional market value of the land at the rate of 12% per annum.