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Titagarh Paper Mills Co. Ltd. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 510 of 1971
Judge
Reported inAIR1975Ori90
ActsConstitution of India - Article 226; Land Acquisition Act, 1894 - Sections 18 and 50; Land Acquisition (Orissa Amendment and Validation) Act, 1959 - Sections 4
AppellantTitagarh Paper Mills Co. Ltd.
RespondentState of Orissa and ors.
Appellant AdvocateD.P. Mohanty, Adv.
Respondent AdvocateStanding Counsel and ;A.K. Mukherjee, Adv.
DispositionPetition dismissed
Cases ReferredKhuriawala Buckles Manufacturing Co. v. Commr.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....s.k. ray, j.1. the petitioner is a company registered under the indian companies act, 1913. its main business is manufacture of paper. it wanted to set up a paper mill at chaudwar and needed land for that purpose. so it applied to the government of orissa for land and the latter agreed to acquire land for it and took recourse to the provisions of the orissa development of industries irrigation, agriculture, capital construction and resettlement of displaced persons (land acquisition) act, 1948 (act 18 of 19481 (hereinafter called the act) for speedy acquisition of land by issuing a notification under section 2 (c) of the act declaring the project of setting up of a paper mill at chaudwar to be included within, the expression 'development of industries', for the purpose of invoking the.....
Judgment:

S.K. Ray, J.

1. The petitioner is a Company registered under the Indian Companies Act, 1913. Its main business is manufacture of paper. It wanted to set up a Paper Mill at Chaudwar and needed land for that purpose. So it applied to the Government of Orissa for land and the latter agreed to acquire land for it and took recourse to the provisions of the Orissa Development of Industries Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Act 18 of 19481 (hereinafter called the Act) for speedy acquisition of land by issuing a notification under Section 2 (c) of the Act declaring the project of setting up of a Paper Mill at Chaudwar to be included within, the expression 'Development of Industries', for the purpose of invoking the provisions of the Act. The Government in the Revenue Department then issued a Notification No. 5873-XVII-209/ 55-D dated the 19th August, 1955 under Section 3 (1) of the Act stating that 541.05 acres were required to be acquired speedily for the Company for development of Industries, namely, for establishment of a Paper Mill as Chaudwar, (Annexure-1). By another notification No. 6940-XVII-205/ 55-Dev. dated 11-10-55 (Annexure-2) also issued under Section 3 (1) of the Act further 17.64 acres were stated to be necessary to be acquired speedily for the same purpose for the Company. Then notices were issued under Section 4 (1) of the Act on 12-10-1955, upon which all the lands notified for acquisition vested in the Government free from all encumbrances with effect from the date when those notices under Section 4(1) of the Central Act were served or published in the Gazette. Government thereupon took possession of all the lands and handed over the same to the Company on 13-3-1956. Since then the Company came into possession of those lands.

2. One Satrughan Sahu, whose land had also been notified for acquisition under Annexure-2 filed a writ application questioning the vires of the notification issued under Section 2 (c) of the Act. He succeeded and the decision is reported in (1958) 24 Cut LT 191 = (AIR 1958 Orissa 187) where it was held that the said notification was ultra vires the Constitution outside the scope of Section 2 (c) of the Act. Accordingly, all proceedings, taken in pursuance of that notification were declared to be invalid. This decision also, affected the validity of the acquisition, proceedings commenced under Annexure-1.

3. To validate these acquisition proceedings the Legislature of the State of Orissa passed the Land Acquisition(Orissa Amendment and Validation) Act, 1959 (hereinafter called the Validation Act). By Section 4 of the Validation Act all the acquisitions made under the Act were validated. The result was that all notifications published under Section 3 (1) of the Act were deemed to be notifications issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Central Act) to the effect that the lands specified in the notifications were needed for a public purpose and for the petitioner-company and that they were to have the same force and effect as if the lands notified in those notifications had been declared under Section 6 of the Central Act, to be needed for the Company, and all steps taken, things done, notices issued and procedure followed under the Act were deemed to have been taken, done, issued and followed under Sections 5, 7 and 8 of the Central Act. Since the acquired lands had vested in the State Government and had been taken possession of, pursuant to service of notice under Section 4 of the Act, such vesting was deemed to have taken place and possession deemed to have been taken in pursuance of Section 17 of the Central Act provided that the Collector called upon the owner, occupier and persons interested in the lands for purposes specified in Sub-section (3) of Section 9 and Section 10 of the Central Act within 30 days of the date of commencement of the Validation Act and, so far as may be, in the manner laid down therein. All matters relating to the acquisitions which were validated were to be governed by the Central Act and the proceedings pending before the competent authority under the Act stood transferred to the Collector under the Central Act and were to be disposed of by him under the Central Act subject to the other provisions in the Validation Act.

Pursuant to Clause (d) of Section 4 of the Validation Act, an agreement was executed between the Governor of Orissa and the Company on 22-4-1960 which is Annexure-3 of the petition. This agreement in para. 1 (a) thereof provided, inter alia, that the Company was to pay and reimburse the State Government the entire cost of acquiring the land pursuant to the provisions of the Act and the Central Act read with the Validation Act including all compensation, damages, costs, charges and expenses, whatsoever which have been or may be paid or incurred in respect of or on account of such acquisition and all law costs and other expenses which have been or may be incurred by the State Government upon or in respect of or incidental to the said acquisition. It also contained an arbitration clause providing for all disputes or difference arising touching or concerning the subject matter of this agreement or any covenantor clause or thing therein contained other than dispute or difference as to the valuation of the buildings determined or to be determined under the provisions of Clause 5 thereof to be referred to the Chief Secretary to the Government of Orissa whose decision shall be final and conclusive and binding on the parties to the agreement.

4. The lands notified for acquisition under Annexures 1 and 2 comprised of 46.99 acres belonging to opposite party No. 5, who had got it by way of lease from the ex-proprietor of the estate which comprised these lands, on 26-9-1944. The estate was abolished under the provision of the Orissa Estates Abolition Act, and during the pendency of the Land Acquisition proceedings, the Collector instituted a proceeding under Section 5 (i) of the Orissa Estates Abolition Act, questioning the validity of the lease of opposite party No. 5. The said proceeding ultimately terminated in favour of opposite party No. 5, and the validity of her lease was upheld by Estates Abolition Collector i.e., the S. D. O., by order dated 30-7-1962 (Annexure-4) and confirmed by the Board of Revenue on 4-10-63. Thereafter the Opposite Party No. 5 issued a notice under Section 80, Civil Procedure Code to the State Government and instituted a suit for recovery of land value and interest. On receipt of the notice under Section 80, Civil Procedure Code, the State Government demanded Rupees 1,06,587.25 from the petitioner towards land value plus interest upto January, 1966, on 11-8-1965. The demand was repeated on 13-9-1966 together with additional interest for the period intervening the two demands. In reply to this demand, the petitioner sent the following reply--

'We hereby admit our liability to pay you compensation award amounting to Rs. 1,10,478.01 inclusive of interest upto 31-3-1967. We trust that if you in term admit this liability on your behalf to Mrs. Suthoo (O. P. 5), she will be in a position to withdraw the case instituted by her. ............

2. We shall be grateful if you will kindly allow us to make this deposit on or before 31-7-1967 according to our convenience.'

Notice under Section 9 of the Central Act was issued to the Opposite Party No. 5 on 15-3-1967 and award was made on 30-3-1967 under Section 11 of the Central Act under which compensation was allowed at the rate of Rs. 1,200/- per acre and 6% interest with effect from 13-3-1956 plus additional compensation and damages, the total amount of which came to Rupees 1,07,644.69 p. This award has been annexed to the petition as Annexure-6. The suit filed by the Opposite Party No. 5 was dismissed on 8-11-1967 on the findingthat in view of the passing of the award the suit was not maintainable. The petitioner made a deposit of Rs. 56,388/- towards the compensation amount on 15-12-1970 about 4 years after passing of the award.

5. Thereafter the petitioner made a representation to the Land Acquisition Officer on 21-2-1969 contending, inter alia, that they are not bound to pay interest and other charges. The Government after considering the representation decided that interest at the rate of 6 p. c. p. a. was payable by the Company on the award amount from the date of taking possession on 23-3-1956 till the date of payment and since the petitioner had already paid Rs, 56,383/- towards the amount awarded to Opposite Party No. 5, the Collector issued a notice requiring the Company to deposit the balance of Rupees 74,872.50 p. after adjusting the aforesaid amount already paid against the estimated total demand of Rs. 1,31,160.50 p. and threatened that in default of payment he would re-enter the acquired lands in pursuance of the terms of the agreement (Annexure-7). The A. D. M. enquired from the petitioner if he was desirous of referring the matter in dispute to arbitration as per Clause 12 of the agreement and, upon the petitioner agreeing, called upon him to furnish the points of dispute for reference, (Annexure-8).

6. The petitioner backed put from making a reference to arbitration and filed the present application for 3 reliefs, namely, (a) for issuance of a writ of certiorari quashing the award passed in Land Acquisition Case No. 10/5 of 58-59 (case number given in prayer portion being wrong) on 31-3-1967 in favour of Opposite Party No. 5 (Annexure-6); (b) for issuance of a writ of certiorari quashing the order passed by the S. D O. in Case No. 72 of 1960, under Section 5 (i) of the Orissa Estates Abolition Act on 30-7-1962 (Annexure-4); and (c) for issuance of a writ of mandamus restraining Opposite Parties Nos. 1, 2 and 3 from demanding any interest and interfering with the possession of the petitioner-company.

7. The Standing Counsel for Opposite Parties 1 to 4 has urged the following contentions:

(a) The petitioner-Company has no locus standi to challenge the award passed under the Land Acquisition Act (Annexure-6) its limited standing in that proceeding being, by virtue of Section 50(2) of the Central Act, to appear and to adduce evidence for the purpose of determination of the amount of compensation payable.

(b) The petitioner-company has also no locus standi to challenge the order of the Estate Abolition Collector (Annexure-4) because he was not a party to thatproceeding under Section 5 (i) of the Orissa Estates Abolition Act.

(c) A single writ application impugning two different orders passed by two different authorities under two different statutes is not maintainable in law.

(d) The petitioner having entered into an agreement with the State Government (Annexure-3) providing an arbitration clause for determination of matters of dispute including interest should not be permitted to invoke extraordinary jurisdiction of this Court until the alternative remedy by way of arbitration was exhausted.

(e) Both the impugned orders having been passed in 1962 and 1967 and the petitioner having come to this Court after long delay without explaining the same, he should not be permitted to invoke the extraordinary jurisdiction of this Court.

(f) The well settled grounds for issuance of a writ of certiorari are not available for quashing Annexures 4 and 6.

(g) Assuming that the petitioner could challenge the Land Acquisition proceeding on the ground that the notice was not served on the Opposite Party No. 5 within 30 days from the date of commencement of the Validation Act as per Section 4 (c) thereof, such non-service of the notice does not, in law, render a proceeding invalid or the award void.

8. One of the general principles of issuing writs in the nature of certiorari for any purpose other than for enforcement of fundamental rights is that the party seeking such a writ must show that he has a legal right which entitles him to it and that such right has been infringed. In support of this I may quote a passage from, the decision of the Supreme Court in the case of Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044 which runs as follows:--

'Article 226 in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under Article 226, like Article 32, must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.'

The legal right referred to in the above passage means a legally enforceable rightof substance. The applicant must show sufficient personal interest in the subject matter of the impugned orders and if his interest is too slight or too remote he cannot be treated as a person aggrieved by those impugned orders. In this legal perspective it is to be determined whether the petitioner can have any legal right which could be said to be infringed by the order passed in the proceeding under Section 5 (i) of the Orissa Estates Abolition Act or by the award.

Section 5 of the Orissa Estates Abolition Act enumerates the consequences of vesting of the estates in the State. Clause (i) of Section 5 provides as follows:--(Quoting the relevant portions)

'Where the Collector is satisfied in respect of ......... lease of any land ...... comprised in such estate .......... made or created at any time after the 1st day of January 1946, that such ............ lease ............ was made with the object of defeating any provisions of this Act or obtaining higher compensation thereunder, he shall have power to make enquiries in respect of such ............ lease ......... and may, after giving reasonable notice to the parties concerned to appear and be heard, set aside any such ......... lease ............ dispossess the person claiming under it and take possession of such property in the manner provided in Clause (h) on such terms as may appear to him to be fair and equitable;

Provided that in case where the Collector decides not to set aside any such ............ lease ......... he shall refer the case to the Board of Revenue for confirmation of the ............ lease ............ and the orders passed by the Board of Revenue in this behalf shall be final.'

It is clear that the parties who are entitled to notice in this enquiry are the lessee and the lessor, because the sole question for determination in that proceeding is the genuineness and validity of the lease. (See (1969) 35 Cut LT Note 186). The petitioner cannot, by any stretch of imagination, be said to have any of his personal rights involved in this proceeding nor can it be said that any such right has been infringed therein. He, therefore, has no locus standi to ask for a writ of certiorari to quash the order of the S. D. O. in Case No. 72 of 1960 under Section 5 (i) of the Orissa Estates Abolition Act (Annexure-4).

9. The lease-hold interest of opposite party No. 5 in 46.99 acres was the subject-matter of the Land Acquisition proceeding in Land Acquisition Case No. 10/5 of 58-59. It is after the proceeding under- Section 5 (i) terminated in her favour that notice under Section 9 of the Central Act was issued to her and ultimately an award was passed in her favour under Section 11 of the Central Act. Section 9 thereof requires notice in theacquisition proceeding to be issued to the persons interested in the land acquired. This land was being acquired for the Company-petitioner and obviously, therefore, the petitioner had no interest in that land. The land acquisition proceeding is a proceeding for determination of the value of the land and other damages caused to the persons whose lands were being acquired. This proceeding, therefore, does not deal with any legal right of the petitioner. It is said that since the petitioner has ultimately to pay the compensation under the award by reason of its contract with the State (Annexure 3) it must be held to have an interest in that proceeding. Its interest is, however, too slight and too remote for it to be treated as a person aggrieved by the award.

Section 50 of the Central Act provides that--

'50 (1) where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or Company.

(2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation:

Provided that no such local authority or Company shall be entitled to demand a reference under Section 18.'

This provision makes it clear that apart from having a right to adduce evidence as to the value of the land the Company has no further legal right. Section 50 of the Central Act has taken away its right to demand a reference from the Company for whom the acquisition has been set on foot. The right to make a reference under Section 18 has been conferred on any person who has interest in the land acquired and who has not accepted the award. Where there are several persons interested, the Collector has the obligation to apportion the compensation amount awarded by him among all such persons and any of such persons aggrieved by the amount awarded by the Collector or by his apportionment has a right to make a reference under Section 18 of the Act. Section 54 of the Act provides for an appeal to the High Court from the award or any part of the award of the court. In all these proceedings either before the Collector or before the court in reference under Section 18 or before the High Court on appeal, the parties interested are the persons having interest in the land and the Collector. The Company has no sort of legal right involved and in whichever way the award is passed it does not infringe any of the Company's rights. The petitioner-company has, therefore, no locus standi whatever except for the limited purpose as provided in Section 50(2) of the Central Act, to ask for a writ of certiorari to quash the award which it could not challenge, impeach or set aside under any of the provisions of the Central Act. This is the exact view of the Bombay High Court in the case of Himalayan Tile and Marble (P) Ltd. v. Francis V. Continho, (1970) 72 Bom LR 910 = (AIR 1971 Bom 341). It has been there held (quoting from the headnote).

'A company for whom land acquisition proceedings are undertaken under the Land Acquisition Act, 1894, cannot be permitted to challenge the award made in these proceedings under Article 226 of the Constitution of India.'

It is needless to refer to other authorities on the point which have been noticed in the Bombay case.

10. It is, therefore, clear from the aforesaid discussions that the petitioner has no locus standi to ask for a writ of certiorari to quash Annexures 4 and 6. Contentions (a) and (b) of the Standing Counsel, therefore, succeed.

11. The jurisdiction of the High Court to issue a writ of certiorari is a (Supervisory jurisdiction and it is not entitled to act as an appellate court. This means that the finding of fact reached by inferior tribunal as a result of appraisement of evidence cannot be reopened in the writ proceeding. The only grounds on which the High Court can issue a writ of certiorari are, (a) where there is error of law apparent on the face of record, but not error of fact, however, grave it may appear to be, (b) where the inferior tribunal has acted without jurisdiction or in excess of it or has failed to exercise jurisdiction, or (c) where in exercise of jurisdiction conferred upon it the inferior tribunal has acted illegally or improperly by deciding matters behind the back of the party affected by the order, and (d) where it has adopted a procedure in infringement of principle of natural justice. (See the case of Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477.) No such ground has been made put in respect of proceeding under Section 5 (i) of the Orissa Estates Abolition Act. Therefore, even on merits, the petitioner cannot succeed in the writ of certiorari to quash that order (Armexure-4).

With regard to the land acquisition proceeding, the only ground on which the award has been challenged to have been passed without jurisdiction is that no notice has been served on Opposite Party No. 5 within 30 days from the commencement of the Validation Act, as required by the proviso to Section 4 (c) thereof.In this connection relevant portions of Section 4 of the Validation Act may be extracted:--

'Notwithstanding anything in any law for the time being in force or in any judgment, decree or order of any Court, in respect of proceedings for the acquisition of land under the Orissa Act as specified in the Schedule--

(a) any notification published under Sub-section (1) of Section 3 of the Orissa Act, read with the corresponding notification under Clause (c) of Section 2 thereof, shall be deemed to be a notification issued by the State Government to the effect that land in the locality specified in the notification was needed for a public purpose and for the company specified therein within the meaning of Section 4 of the Central Act and shall have the same force and effect as fully and effectively as if the particular land had been declared under Section 6 of the Central Act to have been needed for the said Company;

(b) any steps taken, things done, notices issued and procedure followed under Sub-sections (2) and (3) of Section 3 of the Orissa Act shall be deemed to have been so taken, done, issued and followed in pursuance of Sections 5, 7 and 8 of the Central Act;

(c) where a notice of acquisition has been served or published under Section 4 of the Orissa Act such lands shall be deemed to have been validly vested in the State Government and if possession has been taken thereof such possession shall be deemed to have been validly taken, in the same manner, to the same extent and with the same force and effect as if such vesting and the taking of such possession had been in pursuance of Section 17 of the Central Act as amended by this Act:

Provided that the Collector shall, within thirty days of the date of commencement of this Act, call upon the owner, occupier and persons interested in the lands for purposes specified in Sub-section (3) of Section 9 and Section 10 of the Central Act and so far as may be, in the manner laid down therein.'

The date of commencement of this Validation Act is 10-10-59 and the proviso to Section 4(c) of that Act requires that the Collector shall within 30 days of the date of commencement of this Act, call upon the owner, occupier and persons interested in the lands for purposes specified in Sub-section (3) of Section 9 and 10 of the Central Act and so far as may be, in the manner laid down therein. In this case the notice was served on 15-3-1967 which was apparently more than 30 days. The requirement of this provision was impossible of compliance within the period prescribed because the case underSection 5 (i) of the Orissa Estates Abolition Act was disposed of on 30-7-1962 whereupon, Opposite Party No. 5 can be said to have established his interest in the land which was in dispute till then and, it is only thereafter that the State or the Collector, as the case may be, can take cognisance of that interest in land which was the subject-matter of the acquisition proceeding and issue appropriate notice under Section 9. In the circumstances the proviso cannot operate. Even otherwise, the effect of non-compliance of the proviso would be only to defer the consequences enumerated in Clause (c) of Section 4 of the Validation Act and to compel repetition of the procedure commencing with Section 9 of the Central Act The purpose of giving notices under Section 9, as is indicated by Section 25 of the Central Act, is to put a fetter on the claimant from claiming any compensation exceeding the amount claimed by him pursuant to the notice under Section 9, in court, and if no claim has been made pursuant to such notice, the court is prohibited from awarding any amount exceeding the amount awarded by the Collector. Thus non-service of notice in time under Section 9 of the Central Act would not render the proceeding invalid or the award void. I think, that for the aforesaid reasons the award cannot be said to have been passed without jurisdiction and none of the recognised grounds for issuance of writ of certiorari having been made out, the application for quashing Annexure-6 shall also fail.

12. It is also well settled that exercise of powers 'for other purposes' under Article 226 is discretionary and where the writ-applicant is guilty of laches, that is to say, there is unreasonable delay in approaching the court for his reliefs, for which there is no satisfactory explanation, he would not deserve the discretionary remedy. Here, Annexure-4, was passed in the year 1962 and the award (Annexure-6) was made in the year 1967 and the petitioner remained quiescent till 23-6-1971 and he has offered no explanation for this delay in coming to court. On this ground also the petitioner not being vigilant about his claim, if any, is not entitled to invoke the extraordinary jurisdiction of this Court. There are ample authorities for this principle (See 1973 (1) Cut WR 541 = (1974 Lab IC 292); (1973) 39 Cut LT 741 and ILR (1973) Cut 339 = (AIR 1973 Orissa 199).) Thus, contention (e) of the Standing Counsel has substance.

13. A single writ application seeking to quash two different orders passed in two different proceedings to none of which the petitioner was a party cannot be maintained. This view has judicial support in the case of Biswaranjan Bose v. Honorary Secy., RamKrishna Mission, Vivekanand Society Jamshedpur, AIR 1958 Pat 653 where it has been held that--

'separate applications must be made for issue of separate writs to quash separate orders; otherwise, on one application, if it succeeds, several separate writs will have to be issued.'

and that will lead to an absurd position. In that case 4 teachers jointly applied for a writ to quash 4 orders of termination of service passed against them. That was not exactly a case like the present one where one applicant is seeking to quash two different orders passed at different times in two separate proceedings under two different statutes. In other words the petitioner has tried to unite separate causes of action against different parties in the same petition involving different reliefs against them. There is no reason why the principle as enunciated above will not apply to this case also. The more direct case on this point is the case of Khuriawala Buckles Manufacturing Co. v. Commr., Sales Tax, U. P., AIR 1965 All 517, In, this case the petition for certiorari was filed for quashing two assessment orders relating to two different assessment years and their Lordships held that the said petition was not maintainable. In the perspective of the aforesaid case law the present writ application for quashing two different orders must be thrown out as not maintainable.

14. Coming to the 3rd relief for a writ of mandamus restraining the opposite parties 1 to 3 from demanding any interest and interfering with its possession, it will be noticed that the petitioner entered into a binding agreement with Government as per Annexure-3 that lands enumerated therein, which includes lands of opposite party No. 5, shall be acquired for it at his cost and expense. Para. 1 (a) of the agreement stipulated that the petitioner shall pay all compensation, damages, costs, charges and expenses whatsoever which have been or may be paid or incurred in respect of or on account of such acquisition and by para. 12 of the agreement, it was provided that all disputes between the contracting parties shall be referred to the named arbitrator whose decision shall be final and binding. The question of liability to pay interest is, having regard to the language of para 12, clearly an arbitrable issue. In fact, the petitioner had admitted, in its letter dated 17/18-11-1966 quoted in para. 11 of the counter filed by Opposite Party No. 5, its liability to pay compensation amounting to Rs. 1,10,478.01 inclusive of interest upto 31-3-1967 and in fact on 15-12-1970, a sum of Rs. 56,388/- was deposited towards the discharge of the said liability. The remedy of the petitioner is clearlyto seek arbitration of this dispute regarding interest. Actually the petitioner had agreed to go to arbitration but backed out later. The petitioner's conduct in approbating and reprobating, as indicated above, and the existence of an alternative remedy of arbitration disentitles it to the discretionary relief regarding interest and possession under Article 226 of the Constitution.

15. I will now take up the petition for amendment filed by Mr. Mohanty on behalf of the petitioner. This application was filed on 3-10-1972. The writ application came up for admission on 29-11-1972 and was admitted on that date. Mr. Mohanty did not move his amendment petition which he should have done on the date of admission. A Bench considered the question of hearing the writ along with F. A. No. 22/68 on 25-1-1974 and it was decided that this writ application shall be heard separately. Even on that day the petition for amendment was not moved. The hearing of the writ application commenced on 21-2-1974 and was concluded on 11-3-1974. The learned Counsel for the petitioner did not move his application for amendment at any time during hearing and argued his case on the basis of original application. Long after hearing was closed, Mr. Mohanty moved his petition for the first time on 22-3-1974 and it was strongly objected to both by the counsel for the State as well as for Opposite Party No. 5. They argued that if amendment was allowed at this late stage it would raise fresh issues of fact requiring fresh counter and fresh hearing. The petitioner who has been guilty of laches in filing this writ application after 8 years of the order under Section 5 (i) of the Orissa Estates Abolition Act and after 4 years of making of the award has again shown lack of vigilance in moving the petition for amendment and to allow it now would be a great hardship to the opposite parties. In the circumstances we do not think it proper to allow the amendment sought for. The amendment petition is, therefore, rejected.

16. For the aforesaid reasons, we find no merit in this writ application, which is accordingly dismissed with costs which is assessed at Rs. 500/-.

S. Acharya, J.

17. I agree.


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