The High Court
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK LAA No.110 of 2018 An appeal under Section 54 of the Land Acquisition Act, 1894. --------------------- Haridaspur-Paradip Railway Company Limited …..… Appellant -Versus- Surendra Samal and others …..… Respondents For Appellant : Mr. S.S. Mohanty, Advocate For Respondents: Mr. A.K. Tripathy, Advocate for Respondent Nos. 1 to 4 Mr. S. Swain, AGA for proforma respondents 5 & 6 ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.S. SAHOO Date of hearing and judgment : 22.04.2025 ------------------------------------------------------------------------------------------------------- M.S.SAHOO, J. Present LAA is listed and taken up along with LAA Nos.111 and 112 of 2018. All the parties to the respective appeals are represented by the same learned counsel. The facts of the appeals are identical as they arise from the same LAA No. 110 of 2018 Page 1 of 39 land acquisition process, for construction of Haridaspur- Paradip New Broad Gauge Railway Line. Issues are also similar and identical. The question of law is also the same to be decided by this Court. LAA No.110 of 2018 was heard as the lead case. For effective utilization of available time all the appeals were taken up and heard together. The learned counsel for the parties who represented the parties in all the cases were heard at length. This appeal is disposed of by noting the contentions and arguments urged in all the appeals taken together. I.A. No. 157 of 2023 2. In the I.A. the petitioner, a Company incorporated under the Companies Act, 1956 namely, Haridaspur- Paradeep Railway Company Limited (HPRCL) is seeking leave to appeal. The Company was not arrayed as a party in a referral proceeding u/s. 18 of the Land Acquisition Act, 1894 before the learned Civil Judge (Sr. Division), Jajpur. By seeking leave the award is sought to be challenged in appeal. The I.A. has been filed under Rule 5, Chapter VII of the Rules of the High Court of Orissa, 1948 by the intending LAA No. 110 of 2018 Page 2 of 39 appellant Company with a prayer to grant leave to appeal against the award dated 07.02.2018 passed by the learned Civil Judge (Senior Division), Jajpur in L.A. Case No. 11 of 2009. 3. The brief background of LA before the learned court below leading to the present LAA is that Govt. of Odisha by Gazette Notification dated 11.03.2005 u/s. 4(1) and 17(4) of the LA Act, 1894 notified acquisition of land for construction of New Railway line from Haridaspur to Paradip (“The New Rly Line” for short). Lands of the opposite parties, Ac.0.028 decs were notified to be acquired. Appellant HPCRL was incorporated for creating project specific Special Purpose Vehicle (SPV). The ‘New Railway Line’ was included in the National Rail Vikas Yojana being largely a non-budgetary initiative that envisages public-private partnership model of financing and implementation of railway infrastructure. Concession agreement dated 20.12.2007 was entered into between the Ministry of Railways, Govt. of India with the appellant HPRCL. LAA No. 110 of 2018 Page 3 of 39 4. Learned counsel appearing for the opposite parties refers to the counter affidavit filed by O.Ps.1 to 4 wherein at paragraph 3 it is stated that appellant-petitioner himself admitted that East Coast Railway was the party in the referral court. It is further submitted that East Coast Railway has not filed any appeal challenging the award. 5. In considered opinion of this Court on the face of the pleadings and the judgment that was rendered and is under challenge, it would be evident that neither East Coast Railway nor the present petitioner-appellant were made parties. It is evident from the counter to the I.A. filed on behalf of opposite parties that conspicuously, they have not stated that the Ministry of Railways (MoR) or East Coast Railway or the appellant company (Special Purpose Vehicle) were made answering parties in the proceeding before the Civil Court in the reference U/s.18 of LA Act, 1894. The
Legal Reasoning
cause-title of judgment and the lower court records indicate that these entities were not made party. 6. By the award the learned Civil Judge (Senior Division), Jajpur, decided the reference made by the Land Acquisition LAA No. 110 of 2018 Page 4 of 39 Officer u/s. 18 of the L.A. Act, 1894. The judgment dealt with valuation of the land that was acquired for and on behalf of the petitioner SPV and/or East Coast Railay without they being arrayed as party. 7. The petitioner seeking leave to appeal relies on the decision of this Court dated 29.04.2018 passed by a coordinate Bench in LA No. 47 of 2015 in the matter of Pitambar Sahoo v. Angul-Sukinda Railway Limited : 2016 (II) ILR-CUT 212 : (2016) (II) OLR 27, wherein it was held that the Special Purpose Vehicle (SPV) : a company that has entered into agreement with the Ministry of Railways, Govt. of India is a person interested as would be defined under section 3(b) of the LA Act and can maintain the appeal under section 54 of the said Act. It is submitted by learned counsel for the petitioner that neither the SPV nor the East Coast Railway were made parties as would be evident from the cause title of the judgment passed in L.A. Case, as a result they were not aware of the proceeding nor did they have any scope to present their version before the referral court. LAA No. 110 of 2018 Page 5 of 39 8.
Legal Reasoning
Learned counsel Mr. Tripathy appearing for the opposite parties submits that the decision rendered in Pitambar Sahoo (supra) is distinguishable on facts but he does not deny the fact that it is evident from the judgment in the reference rendered by the learned Civil Judge (SD), Jajpur, that the respondents chose to make the District Collector and District Magistrate of Jajpur (O.P. No.1), the Land Acquisition Collector under LA Act (O.P. No.3) and the contractor executing the construction work, i.e., Rail Vikas Nigam Limited (RVNL), a separate corporate entity as O.P. No.2. In considered opinion of this Court mentioning ‘East Coast Railway’ in the address of RVNL does not turn out to make East Coast Railway a party to the case. 9. Learned trial Judge in the LA case also has not delved into the aspect whether any of the opposite parties were project proponents or they were the requisioning authority for land acquisition that was the subject matter of adjudication. The issues framed by the learned LAA No. 110 of 2018 Page 6 of 39 Referral/Trial Court in its judgment indicates the same and are reproduced : “(i) whether the petitioners are entitled to receive any higher rate of award/compensation ? (ii) what is the fair market value of the land acquired on the date of acquisition ? (iii) whether the petitioner are entitled to any other relief (s) ?” 10. Somehow, the judgment in its ordering portion or any of its earlier paragraphs does not refer to who will deposit the enhanced amount of compensation before the LAO Collector. The list of witnesses examined on behalf of petitioners indicates that no witness was examined on behalf of opposite parties Special LAO nor any written statement was filed on behalf of the Special LAO. “Working sheet of the acquired land” was produced on behalf of Opp. Paty-L.A. Collector marked as Ext.A. Apparently, contest to pay the enhanced amount as claimed or any contest to the basis of determination of enhanced amount has not been disclosed in the judgment. LAA No. 110 of 2018 Page 7 of 39 11. No material is brought to the notice of this Court by appellants or the respondent-opposite party LAO to show that East Coast Railway and the Company were made parties or were heard in he proceeding u/s.18 of the Act before the Court below. It is also neither pleaded nor demonstrated before this Court if impletion of East Coast Railway and/or the intending intervenor Company in the proceeding u/s18 would have prejudiced the appellants or the Land Acquisition Officer in any manner. The Special Land Acquisition Officer opposing the intervention by the intervener company is rather baffling, as the Special LAO is not an affected party who would pay the compensation if it is enhanced. In view of the above discussions, the petition seeking leave to appeal is allowed and leave granted. The appeal at the instance of petitioner shall be heard and dealt with in accordance with law.
Decision
The I.A. stands disposed of. LAA No. 110 of 2018 Page 8 of 39 I.A. No. 48 of 2018 12. Application has been filed under section 5 of the Limitation Act for condonation of delay of 108 days in filing the appeal. 13. In the objection filed on behalf of the respondent- opposite parties to the petition for condonation of delay, it is contended that delay cannot be condoned if the appeal is filed at the behest of the Government entities. The appellant-petitioner relies on the decision of the Supreme Court in the case of State of Haryana v. Chandra Mani, reported in (1996) 3 SCC 132 (para-11). The Supreme Court held that in each and every case the delay in approaching the Court cannot be treated as a straight jacket and explanation to condone the delay cannot be rejected. It is held it depends on facts and circumstances of each of the case. 14. In the case at hand the facts are somewhat striking. The land acquisition is made at the instance of the East Coast Railways and/or for a Special Purpose Vehicle [SPV : Haridaspur-Paradip Railway Company Ltd. HPCRL], a LAA No. 110 of 2018 Page 9 of 39 company incorporated to execute the rail track laying and allied development project. Neither the railway nor the special purpose vehicle have been made parties before the court adjudicating the reference under Section 18 of Land Acquisition Act, 1894. The reasons for the referral Court to entertain a reference without the requisitioning authority/Company executing the project being made parties and to proceed to adjudicate is unfathomable to say the least. The statutory authorities under the Land Acquisition Act who undertake the process of acquisition like the Collector and District Magistrate of the district and the Land Acquisition Collector, who are neither the project proponents nor the requisitioning authority, are made parties in the reference. The contractor engaged to construct the project is also made a party. The contractor engaged filed written statement. From the judgment it is apparent that the learned court did not deal with the factual aspect as to whether the project proponent or authority requisitioning the acquisition of the land were parties before it and were heard. The facts are so LAA No. 110 of 2018 Page 10 of 39 glaring that the appeal needs to be considered on its own merit. Applying the principle as held in State of Haryana v. Chandra Mani (supra) delay of 108 days in filing the appeal is condoned. The I.A. is allowed and disposed of. LAA No. 110 of 2018 15. The appeal has been listed along with the I.As. for orders, as the I.A seeking leave to appeal and for condonation of delay have been allowed. It is agreed by learned counsel for the appearing parties that after about seven years of filing the appeal, endeavour should be made for final hearing of the appeal. Accordingly, the appeal is taken up for hearing. 16. Heard learned counsel for the appellant and the respondents as well as the learned AGA for proforma respondents. Admit. Mr. Tripathy, learned counsel who has entered appearance on behalf of the respondents in the connected I.As those have been dealt with and disposed of today LAA No. 110 of 2018 Page 11 of 39 submits that he has instructions to appear in the appeal and has already filed Vakalatnama on 25.06.2019 which is on record. Accordingly no further notice needs to be issued to the respondents who are already represented. In view of the order that is going to be passed in the present L.A.A., no notice is issued to the respondent no.7 (Chief Engineer, Construction RVNL), who was the opposite party no.2 before the learned referral court. 17. The appeal has been filed u/s. 54 of the L.A. Act, 1894 read with S.50(2) of the said Act challenging the Judgment dated 07.02.2018 passed by learned Civil Judge (Senior Division), Jajpur in L.A. Case No. 11 of 2009 adjudicating and answering a reference under section 18 of the L.A. Act. 18. Heard Mr. S. S.Mohanty, learned counsel for the appellant, Mr. Tripathy, learned counsel for respondents 1 to 4 and Mr. S. Swain, learned AGA for proforma respondents 5 & 6. LAA No. 110 of 2018 Page 12 of 39 Learned counsel for the appellant reiterates his submissions made in the connected I.As. as noted above. It is submitted by learned counsel for appellant that they are a Company Registered under the Companies Act, 1956 : a Special Purpose Vehicle (SPV) incorporated to undertake and implement the project for which land was acquired for i.e. Haridaspur-Paradip New Broad Gauge Rail Link project. The judgment in LA Case No. 11 of 2009 passed by the learned Senior Civil Judge, Jajpur dated 07.02.2018 would indicate that the present appellants were not made parties in the said proceeding. State of Odisha and Land Acquisition Zone Officer-cum-LA Collector were made opposite parties no.1 and 3 respectively and the contractor- company executing the work of construction of the railway line i.e. RVNL (Rail Vikas Nigam Limited) was arrayed as opposite party no.2. 19. Learned counsel for the appellant refers to the averments made by the appellant in their reply dated 15.01.2025 filed on 16.01.2025 in response to the counter of the respondents in LAA No. 110 of 2018. He LAA No. 110 of 2018 Page 13 of 39 relies on para-5 thereof which quotes clause 3 of the MoU/concession agreement dated 12.12.2007 entered into between the appellant and the Union of India represented by Ministry of Railways. Para 5 is reproduced herein : “5. That Clause No.3 of the Memorandum of Understanding (MoU) explicitly stipulates that the land required for the project shall be acquired by East Coast Railway at the expense of the Special Purpose Vehicle (SPV). The relevant clause is reproduced hereinbelow for ready reference : “3. The land for the project shall be acquired by the East Coast Railway at the cost of the SPV. RVNL will arrange to lease out the land to the SPV at appropriate terms and conditions as decided manually. The Land and existing assets, if any, will continue to be the property of Ministry of Railways.” 20. Learned counsel for the respondents submits that the respondents had impleaded opposite party no.2, who had filed written statement before the referral court. He supports the award. It is submitted that opposite party no.2, (RVNL) before learned Senior Civil Judge in the LA Case had filed written statement. But he fairly concedes that neither the project proponent: East Coast Railway nor any other requisitioning authority for land acquisition were made parties in the L.A. Case as is evident from the judgment. The LAA No. 110 of 2018 Page 14 of 39 judgment does not refer to any of the opposite party as the requisitioning authority or the SPV for whom the land was acquired. 21. Learned Additional Government Advocate appearing on behalf of the proforma respondent nos.5 and 6 submits that as far as payment of compensation is concerned, the District Collector-cum-District Magistrate and Land Acquisition Collector have their role as the statutory authorities to the extent the LA Act provides. They are authorities under the statute, undertake the process of acquisition as per requisition of the Project Proponent. At best they can facilitate determination, deposit and disbursal of compensation as prescribed by the statute and also awarded by the referral court. The amount/enhancement (if any) is deposited with the authorities by the project proponent/requisitioning authority to be paid to the land oustees. 22. It is submitted by the learned counsel for the respondent nos.1 to 4 that the matter is pending since 2018, the LA case was initiated in the year 2009, fifteen years have LAA No. 110 of 2018 Page 15 of 39 passed and the present appellants by filing the appeal have challenged the award on the ground of not joining them as parties in the proceeding before the referral court. It is submitted no useful purpose would be served in keeping the appeal pending before this Court in absence of the written statement of the present appellant. The respondents would also have difficulty as they have to defend their case that was made in the reference in absence of the written statement of present appellants. Learned counsel submits that the matter may be remanded with a further prayer that it should be directed to be taken up and disposed of expeditiously. 23. Learned counsel for the appellant submits that for achieving the ends of justice and for effective adjudication, the appellants would not oppose such a prayer. He further submits that the appellants undertake that they shall cooperate in the proceeding if they are allowed to be impleaded as a party. 24. In U.P. Awas Evam Vikash Parishad v. Gyan Devi: