GADADHARA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order dated 14.3.1997 at Annexure-2 passed by the learned Civil Judge (Senior Division), Balasore in Ex- ecution Case No. 9 of 1995 holding that the petitioner cannot recover the amount of compensation from the Land Acquisition Collector and he can do so only from the party who had received the said amount wrongfully is the subject matter of challenge in this application.

(2.) The petitioner purchased land admeasuring Ac. 0.13 under plot No. 1338 appertaining to khata No. 303 in village Ganeswarpur from Rabindranath Behera and Khagendra Behera by way of a registered sale-deed dated 30.4.1971 and from the date of purchase he continued to remain in possession of the said land. The Tahsildar, Balasore by order dated 3.1.1981 mutated the land in question in the name of the petitioner who had been paying rent regularly from the time ofjpurchase. The allegation of the petitioner is that the land in question was acquired by the State Government as per its declaration No. 67146 dated 14.11.1985 published in the Orissa Gazettee dated 10.12.1985 for establishment of Industrial Estate. There was no notice to him at any time during the land acquisition proceedings. The Land Acquisition Collector without holding proper enquiry as to who was the rightful owner of the land in question made the award under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in favour of third party and illegally paid the amount under the award to him. After coming to know that the awarded amount was paid to third party wrongly, the petitioner demanded payment of the same to him. This necessitated the Land Acquisition Collector to make a reference under Section 30 of the Act to the learned Subordinate Judge, Balasore in L.A. Misc. Case No. 222 of 1986. After hearing, the learned Subordinate Judge by order dated 5.1.1993 held that the petitioner alone is entitled to receive the compensation amount awarded vide award No. 15 in respect of the disputed land and no other party was entitled to receive the amount. The petitioner, after the aforesaid order, approached the Land Acquisition Collector to pay him the awarded amount but as there was no response, he levied Execution Case No. 9 of 1995 in the Court of the Civil Judge (Senior Division), Balasore for realisation of the amount. The learned Civil Judge by the impugned order dated 14.3.1997 (Annexure-2) held that the petitioner can only recover the amount from the party who received the same and not from the Land Acquisition Collector. As already indicated, the legality of the said order at Annexure-2 is under challenge.

(3.) Shri Samal contends that the impugned order passed by the executing Court is erroneous in law and is not sustainable. He submits that in L.A. Misc. Case No. 222 of 1986, the learned Subordinate Judge has already declared that the petitioner is alone entitled to receive the compensation amount, and in view of such declaration, he should not be forced to go to a civil court for recovery of the amount which was paid to a person who was not entitled to receive it. In this connection, he relies on the judgment of the Calcutta High Court in Abani Bhusan Chatterjee v. The State of West Bengal wherein it has been held that in the facts of that case, payment of the awarded amount without due opportunity to the applicants by the Collector was wrongful and as such, the applicants should not be relegated to a suit to recover the money so paid from the persons who received the amount. The learned Additional Government Advocate, on the other hand by referring to the third proviso of sub-section (2) of Section 31 of the Act which provides that nothing therein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under the Act, to pay the same to the person lawfully entitled thereto, submits that the petitioner has the right to recover the awarded amount from the persons who received it and the Land Acquisition Collector cannot be held liable for payment of the amount to the petitioner.