Orissa High Court

Bhaskar Chandra Nath vs State Of Orissa & Others ... ... on 11 June, 2021

     HIGH COURT OF ORISSA; CUTTACK


         W.P.(C) Nos.29283 &29284 of 2011

Applications under Articles 226 and 227 of the Constitution
of India.

                              -----------

In W.P.(C) No.29283/2011

Bhaskar Chandra Nath ... Petitioner

Versus

State of Orissa & others ... Opp.Parties

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For Petitioner : M/s. Santosh Ku. Nanda A.Nanda, N. Maharana, D.Mahakud

For Opp.Party Nos.1 to 5: Mr. A.K.Nanda, Addl. Govt. Advocate.

For Opp.Party No.6 : M/s. B.P.Panda, R.P.Pattnaik and S.Moharana.

In W.P.(C) No.29284/2011

Sudhakar Nath                  ...            Petitioner

                           Versus

State of Orissa & others       ...            Opp.Parties

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          For Petitioner             : M/s. Santosh Ku. Nanda
                                           A.Nanda,
                                           N. Maharana,
                                           D.Mahakud

For Opp.Party Nos.1 to 5: Mr. A.K.Nanda, Addl. Govt. Advocate.

For Opp.Party No.6 : M/s. B.P.Panda, R.P.Pattnaik and S.Moharana.

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PRESENT:

MR. JUSTICE S.K.MISHRA AND MISS JUSTICE SAVITRI RATHO

Date of Hearing15.4.2021 & 11.6.2021 and Date of Judgment: 11.6.2021

S.K.Mishra,J. In these two Writ Petitions, the Petitioner-Bhaskar Ch. Nath in W.P(C) No.29283/2011 and Petitioner- Sudhakar Nath in W.P.(C) No.29284/2011, both are sons of Late Srinibas Nath, have prayed that they should be declared as displaced persons under Clause 2(d) of the Orissa Resettlement and Rehabilitation Policy, 2006 (hereinafter referred to as the "RR Policy, 2006) dated 14th May, 2006 published in the Extraordinary Gazette on 15th May, 2006; and to provide them Rehabilitation and Resettlement Assistance and it served in the aforesaid Policy they are not to evict them till the Petitioners are admitted to Rehabilitation Assistance as envisaged.

2. The Petitioner-Bhaskar Ch. Nath has been recorded with Ac.0.07 dec. of land in Plot No.12/559 of Khata No.59/16 in Itap Mouza in the Odapada Block of Dhenkanal District. Similarly, the Petitioner-Sudhakar Nath has been recorded with Ac.0.06 dec. of land in Plot No.12/560 of Khata No.59/17 in Itap Mouza in Odapada Block in the district of Dhenkanal.

3. The relevant events in chronological are enumerated below:-

On 12.3.1996 both the Petitioners purchased pieces of lands from Sudarsan Nath and Surendra Nath by virtue of separate registered sale deeds. They took over possession thereof.

On 14th May, 2006, the State of Orissa adopted the RR Policy, 2006 known as Orissa Resettlement and Rehabilitation Policy, 2006 on 15th May, 2006.

The aforesaid Policy was published in the Extraordinary Gazette on 15th May, 2006.The Government of Orissa vide a Gazette Notification dated 20th December, 2006 acquired the land for the purpose of Construction of Road and Bridge under the relevant provisions of the Land Acquisition Act, 1894. In the mean time, the Petitioners have constructed residential house with the complete accommodation thereon and have planted trees including fruit bearing trees.

On 13.7.2007, the Petitioners were given notice that that the lands measuring areas of Ac.0.07 and Ac.0.06 decs. are being acquired and that they may file their show cause.

On 17.7.2007 the lands were recorded in their name by carving out Khata Nos.59/16 and 59/17.

On 12.2.2008, the Petitioner-Bhaskar Ch. Nath was noticed that he was entitled to Rs.11,07,056/- towards his compensation for acquisition of his land. Similarly, the Petitioner-Sudhakar Nath was noticed that he was entitled to Rs.11,36,378/- towards his compensation for acquisition of his land.

On 29.8.2011, the Executive Engineer, National Highway Division of Dhenkanal gave notice to both the Petitioners that they were in unauthorized occupation of Highway comprising of an area of Ac.126.72 SQM situated at K.M. 87/550 and an area of Ac.201.23 SQM situated at K.M. 87/600 by the side of N.H.42. They were asked to remove the same.

Though the Petitioners had submitted four representations i.e. on 07.9.2011, 8.9.2011, 29.10.2011 and 31.1.2012, it had no results. Hence, the Petitioners have filed these two Writ Petitions.

4. A Division Bench of this Court presided by the then Chief Justice of this Court on 08.11.2011 issued notices in both the cases and further directed that the Petitioners shall not be evicted from their residential building over the plot in question.

5. Opposite Party Nos.1 to 5 did not file any counter affidavit. However, Mr. A.K.Nanda, learned Addl. Government Advocate, argued that the Petitioner in both the cases are not the residents of village Itap and that they are unauthorisedly occupying the lands of the National Highway and that they have already received the compensation for that acquisition of lands and finally there are no materials on record that the entire lands owned by them have been acquired. So they are not entitled to any Rehabilitation or Resettlement. He also argued that the case comes squarely under the Resettlement and Rehabilitation Policy, 2005.

6. The Opposite Party No.6-TATA Steel BSL Ltd. has filed their counter affidavit. Since there is no averment against Opposite Party No.6. and the Petitioners have not prayed any relief against it, it is not necessary to look to its pleadings. It may be noted here that originally Opposite Party No.6 was Bhushan Steel Ltd. and in a proceeding under the Insolvency and Bankruptcy Code, 2016, the TATA Steel Limited acquired the business and management of Opposite Party No.6 w.e.f. 18th May, 2018. Subsequently, the name of Opposite Party No.6 was

changed to TATA Steel BSL Ltd., an amendment was made and the TATA Steel BSL Ltd was made Opposite Party No.6 in place of Bhushan Steel Ltd.

7. Opposite Party No.7, the Executive Engineer, National Highway Division, Dhenkanal filed a counter affidavit in this case. The gist of the plea raised by the Opposite Party No.7 is that actually the land has been acquired for construction of road over the Bridge on NH No.55. Requisition was made by the IDCO. After acquisition of the land, a Deed of Transfer dated 3rd November, 2009 was effected in favour of the Chief Engineer, National Highway, Odisha, Bhubaneswar and the land was purchased by Opposite Party No.7. In reply, the Petitioners claimed that the proceedings were initiated during the year 2005 and filing of any objection against the notifications was not within the knowledge of Opposite Party No.7. The Land Acquisition Officer, Dhenkanal being the competent authority finalized the cases by determining the present market value of land and structures including well and trees and made payment of compensation thereon to the Petitioners which have been received by them without any objection. (But no document has been filed to show that it has been received without objection).

8. So the only issue that arises in this case is;

"Whether the Petitioners are entitled to the benefits as enshrined/envisaged under Orissa Rehabilitation and Resettlement Assistance Policy,2006 or the case of the Opposite Party No.7 has to be accepted and that the Petitioners are entitled to compensation as per the Land Acquisition Act, 1894 and the Rehabilitation Scheme of 2005".

9. In the year 2006, the State of Orissa in order to ensure sustained development through a participatory and transparent process formulated a comprehensive resettlement and rehabilitation policy. The Basic objectives of the policy are:-

(i) to avoid displacement wherever possible and minimize it exercising available options otherwise;

          (ii)     to recognize voices of displaced
                   communities emphasizing       the
                   needs     of   the    indigenous
                   communities    and     vulnerable
                   sections;




          (iii)    to      ensure     environmental
                   sustainability            through
                   participatory  and    transparent
                   process; and

          (iv)     to help guiding the process
                   of     developing       institutional
                   mechanism for implementation,

monitoring, conflict resolution and grievance redressal.

10. The second objective of this Policy was to recognize the voices of the displaced communalities emphasizing the need of indigenous communities and vulnerable sections. In this case exactly the contrary has happened. Though notification of acquisition was published on 15th December, 2006 and published in the Gazette on 20th December, 2006, this fact has not been disputed by any of the Opposite Parties by raising a plea traversing it (though specifically raised in the Writ Petition). The State Government, especially, the Addl. Government Advocate, submitted that the Petitioners shall be entitled to the benefit under the Orissa Rehabilitation and Resettlement Policy, 2005 and not under the Orissa Rehabilitation and Resettlement Policy, 2006.

11. We hereby comes to the conclusion that the Petitioners are entitled to the benefit under the Orissa RR Policy, 2006 and not under the Orissa RR Policy, 2005. The difference between the two that in Orissa RR Policy, 2005, there is no effective Rehabilitation Assistance

Scheme to the effected family. In Orissa RR Policy, 2006 the Rehabilitation Assistance has been described at paragraph-8 internal page-7 of the document Annexure-1, page 17 of the Writ Petition. In that R.R.Policy in Clause- IV the Urban Projects and Linear Projects are provided. We consider it appropriate to quote the same:-

"IV-Type D:Urban Projects and Linear Projects.

Each displaced family will get:

(a) Homestead land @ 1/10th of an acre in rural area and @ a/25th of an acre in urban area or cash equivalent of Rs.50,000/- preferably near growth centers like land by the side of roads and important junctions, land by the side of railway stations etc., subject to availability. If required, project authority may acquire such suitable land under the relevant Act for the purpose.

(b) House Building Assistance:

Rs.1,50,000/- to each displaced family will be admissible whether settling in a Resettlement Habitat or elsewhere.

(c) If house/homestead land of any landholder is acquired for linear project of if there is total displacement due to acquisition for such project, the project authority shall provide employment to one of the members of such displaced family in the project. Wherever RPDAC decides that provision of such employment is not possible one time

cash assistance as decided by the Government will be paid by the project authority.

12. In this case, though admittedly the acquisition was made notified on 15th December, 2006, i.e. after seven months of coming into force of the RR Policy, 2006, Paragraph-4 of the RR Policy has not been complied by Opposite Party Nos.1 to 5. There has been no survey and identification of displaced family. No document has been filed by the Opposite Parties 1 to 5 that two months prior to the publication of the notice, a socio economic survey was undertaken by the State Government. No document has been filed that the list of displaced families, were placed before and approved by the respective Rehabilitation and Periphery Development Advisory Committee. In fact, there is no material on record that actually such a committee was constituted by Opposite Party No.1 in this case. The Grama Sabha of Panchayat at the appropriate level were not consulted in the scheduled area before initiation of the land acquisition proposal. No Identify Card was issued to each of the displaced family in a manner prescribed by the Government though as per Clause (c) of paragraph-2 the cut-off date for the purpose of compensation shall be the date on which the notification declaring the intention to acquire land under the relevant Act or under the provisions of Orissa RR Policy is published.

13. In this case, the land of both the Petitioners were by the side of the National Highway No.55 and, therefore, they are entitled to the Type-D Scheme for Urban Projects and Linear Projects. Both the Petitioners are entitled to homestead land @ 1/10th of an acre in rural area or 1/25th of an acre in urban area or cash equivalent. Since this aspect has not been considered, we hereby hold that a compensation of Rs.50,000/- is not adequate in this case. They are also entitled to house building assistance @ Rs.1,50,000/- from the date of Notification i.e. 15th December, 2006 and interest thereon @ 8% per annum till they are given the actual plot or cash equivalent and house building assistance. One member of the land holder is entitled to Rehabilitation employment as the entire house/homestead land is acquired by the Opposite Parties 1 to 5 and used by Opposite Party No.7.

While extending the Rehabilitation Assistance, the definition of displaced persons family as appearing in Sub- clauses 'd' and 'f' of Paragraph-2 of the RR Policy, 2006 definitions shall be kept in mind.

14. In the result, both the Writ Petitions are allowed. The Opposite Party No.3-the Collector-cum-District Magistrate, Dhenkanal is hereby directed to give the aforesaid benefits to the Petitioners within a period of three months from the date of communication of this order.

Communicate.

Requisites for communication of this order be filed within a week.

As the restrictions due to resurgence of COVID- 19 are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by Mr. Santosh Kumar Nanda, Advocate, of the learned Addl. Government Advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April, 2021.

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S.K.Mishra, J Savitri Ratho,J.

I agree.

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