PITAMBAR SAHOO Vs. ANGUL-SUKINDA RAILWAY LIMITED

JUDGEMENT

(1.) This is an application filed by the claimant -respondent No. 1 (for short 'the petitioner') assailing the maintainability of the appeal at the instance of the appellant, namely, Angul -Sukinda Railway Limited, Bhubaneswar (for short 'the Opposite Party').

(2.) It is contended in the misc. case that basing upon a requisition made by East Coast Railways through its Chief Engineer (HQ/CQ), Bhubaneswar, the State Government issued notification under Sec. 4 (1) of Land Acquisition Act, 1894 (for short 'the Act') for acquisition of the land for Angul -Duburi -Sukinda Road New B.G. Rail Link Project at the instance of the Union of India/Ministry of Railways. The opposite party is neither the Requisitioning Authority nor has undertaken any liability as per the notification/declaration under the Act for payment of compensation to the claimant and as such, it is neither a beneficiary nor a person interested to sue or to be sued for the purpose of determination of compensation under the provisions of the Act. The opposite party has no locus standi to file the appeal and leave granted to the opposite party by this Court by order dated 16.11.2015 to present and prosecute the appeal is opposed to the provisions of Sec. 50(2) of the Act. The opposite party is neither a 'local authority' as defined under Sec. 3 (aa) of the Act or nor a 'Company' under Sec. 3 (e) of the Act for whom the land has been acquired. The opposite party is also not a 'person interested', who is required to be noticed under Sec. 20 of the Act and thus, it has no right either to apply for a reference to the Court for determination of compensation or to prefer and maintain an appeal under Sec. 54 of the Act. SRO No. 1074 dated 14.05.1955 has been issued in exercise of power conferred on the Union of India by Article 258 (1) of the Constitution of India. In the said S.R.O., the Government of Odisha has been entrusted to act for and on behalf of the Central Government in relation to acquisition of land for the purpose of Union of India. The opposite party has been entrusted to carry out the project work. Thus, the status of the opposite party is not more than an allottee/lessee or contractor on the basis of concession agreement under Annexure -1 to the petition. The opposite party cannot step into the position of East Cost Railways or Government of Odisha on the basis of concession agreement for execution of the project work under Public Private Partnership (PPP) mode. The Special Land Acquisition Officer has been provided with fund to pay compensation for acquisition of the land. The East Coast Railways for which the land has been acquired has the knowledge of such award of compensation and in many cases, has intimated the Special Land Acquisition Officer for payment of decreetal dues/compensation. Hence, the petitioner contended that the appeal at the instance of the opposite party is not maintainable and prayed for allowing his prayer holding the appeal not maintainable.

(3.) The opposite party filed its counter affidavit refuting the allegations made in the petition. It is contended that the petition is not maintainable either in law or on fact. Upon a reference being made under Sec. 18 of the Act, the learned Civil Judge (Senior Division), Kamakhyanagar determined the market value of the acquired land which is impugned in the present appeal. The Government of Odisha issued a notification vide Notification No. 26720 dated 7.7.2010 under Sec. 4 (1) of the Act for acquisition of the land for execution of Augul -Duburi -Sukinda New B.G. Rail Link Project which was required for Steel and Thermal Sector in the State. Land was acquired for East Coast Railways by the State Government. The project is to be carried out under the Public Private Partnership (PPP) mode adopted by the Ministry of Railways, where the State of Odisha is the major stake holder, two other Private Sector Undertakings have taken the burden to the extent of 32% in the Special Purpose Vehicle (SPV). The opposite party is a Company registered under the provisions of Companies Act, 1956. As per the terms of a concession agreement executed between Ministry of Railways and the Opposite Party, the latter (the opposite party) has been entrusted with the responsibility of raising the funds for the project and also the corresponding duty not only to pay compensation amount for acquisition of land for the project but also to pay the amount for laying the railway track to Rail Vikash Nigam Ltd. (RVNL). In other words, the opposite party is required to pay compensation as per the terms of the agreement. Thus, the Opposite Party is a person interested in the said acquisition. However, neither the East Coast Railways nor the Opposite Party was impleaded as party to the reference. In that view of the matter, the opposite party has presented the appeal with the leave of this Court and the East Coast Railways have also its concurrence in the matter of decision to prefer the present appeal (Annexures -2 and 3 to the counter affidavit). The opposite party is virtually interested in the quantum of compensation as SPV, for which it squarely comes within the definition of 'person interested' under Sec. 3(e) of the Act. Refuting the allegations made by the petitioner to the effect that it was a mere allottee/lessee or contractor, the opposite party submitted that it is bound by the concession agreement, as aforesaid, to pay compensation and as such, it being a person interested is entitled to a notice under Sec. 20 of the Act and also has a locus patentee to participate in the proceeding before the Court of Reference as well as to maintain the appeal before this Court. It is further contended in the counter affidavit that in compliance of the terms of agreement, the opposite party has placed the funds with the Executive Engineer (Con.)/RVNL Projects for the Chief Engineer (Con) -II, East Coast Railways, Bhubaneswar against their requisition and in turn the same has been deposited by the East Coast Railways before the Special Land Acquisition Officer and to substantiate the same, the appellant/opposite party -Company relied upon Annexures -4 and 5 series. Thus, it is contended that this Court has rightly granted leave to present and maintain the appeal by the opposite party before this Court and prayed for dismissal of the petition being devoid of any merit.